1
Exhibit 10.1
=====================================================
-----------------------------------------------------
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF MAY 21, 1998
AMONG
AMERISERVE FOOD DISTRIBUTION, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT,
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION,
AS DOCUMENTATION AGENT,
AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS LETTER OF CREDIT ISSUING LENDER
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BANCAMERICA XXXXXXXXX XXXXXXXX
=====================================================
-----------------------------------------------------
2
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS............................................................................. 1
1.1 Certain Defined Terms............................................................................... 1
1.2 Other Interpretive Provisions....................................................................... 26
1.3 Accounting Principles............................................................................... 27
ARTICLE II THE CREDIT.............................................................................. 27
2.1 Amounts and Terms of Commitments.................................................................... 27
2.2 Loan Accounts....................................................................................... 27
2.3 Procedure for Borrowing............................................................................. 28
2.4 Conversion and Continuation Elections............................................................... 29
2.5 Voluntary Termination or Reduction of Commitments................................................... 30
2.6 Optional Prepayments................................................................................ 30
2.7 Mandatory Prepayments of Loans...................................................................... 31
2.8 Repayment........................................................................................... 31
2.9 Interest............................................................................................ 31
2.10 Fees................................................................................................ 32
(a) Arrangement, Agency Fees................................................................... 32
(b) Commitment Fees............................................................................ 33
2.11 Computation of Fees and Interest.................................................................... 33
2.12 Payments by the Company............................................................................. 33
2.13 Payments by the Lenders to the Administrative Agent................................................. 34
2.14 Sharing of Payments, etc............................................................................ 34
2.15 Increase in Commitments............................................................................. 35
ARTICLE III THE LETTERS OF CREDIT................................................................... 35
3.1 The Letter of Credit Subfacility.................................................................... 35
3.2 Issuance, Amendment and Renewal of Letters of Credit................................................ 36
3.3 Existing Letters of Credit; Risk Participations, Drawings and Reimbursements........................ 38
3.4 Repayment of Participations......................................................................... 40
3.5 Role of the Issuing Lender.......................................................................... 41
3.6 Obligations Absolute................................................................................ 42
3.7 Cash Collateral Pledge.............................................................................. 42
3.8 Letter of Credit Fees............................................................................... 42
3.9 Uniform Customs and Practice........................................................................ 43
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY.................................................. 43
4.1 Taxes............................................................................................... 44
4.2 Illegality.......................................................................................... 45
4.3 Increased Costs and Reduction of Return............................................................. 45
i
3
Section Page
4.4 Funding Losses...................................................................................... 45
4.5 Inability to Determine Rates........................................................................ 46
4.6 Substitution of Affected Lender..................................................................... 46
4.7 Certificates of Lenders............................................................................. 48
4.8 Survival............................................................................................ 48
ARTICLE V COLLATERAL AND GUARANTY................................................................. 47
5.1 Collateral--Personal Property....................................................................... 47
5.2 Mortgages........................................................................................... 47
5.3 Guaranty............................................................................................ 47
5.4 Company Stock....................................................................................... 48
5.5 Intercreditor Agreement............................................................................. 48
ARTICLE VI CONDITIONS PRECEDENT.................................................................... 48
6.1 Conditions of Restatement........................................................................... 48
(a) Credit Agreement and Notes................................................................. 48
(b) Resolutions; Incumbency.................................................................... 48
(c) Organization Documents..................................................................... 48
(d) Legal Opinions............................................................................. 48
(e) Certificate................................................................................ 49
(f) Collateral Documents....................................................................... 49
(g) Insurance Policies......................................................................... 49
(h) Other Documents............................................................................ 50
6.2 Other Conditions to Effectiveness of Restatement.................................................... 50
(a) ProSource Acquisition...................................................................... 50
(b) Equity Contribution........................................................................ 50
(c) Accounts Receivables Securitization........................................................ 50
(d) Indebtedness............................................................................... 50
(e) Governmental Approvals..................................................................... 50
(f) Certificate................................................................................ 50
(g) Borrowing Base Certificate................................................................. 50
(h) Purchase by Lenders........................................................................ 51
(i) Loans...................................................................................... 51
6.3 Conditions to All Credit Extensions................................................................. 51
(a) Notice, Application........................................................................ 51
(b) Continuation of Representations and Warranties............................................. 51
(c) No Existing Default........................................................................ 51
ARTICLE VII REPRESENTATIONS AND WARRANTIES.......................................................... 51
7.1 Corporate Existence and Power....................................................................... 51
7.2 Corporate Authorization; No Contravention........................................................... 52
7.3 Governmental Authorization.......................................................................... 52
7.4 Binding Effect...................................................................................... 52
ii
4
Section Page
7.5 Litigation.......................................................................................... 52
7.6 No Default.......................................................................................... 53
7.7 ERISA Compliance.................................................................................... 53
7.8 Use of Proceeds; Margin Regulations................................................................. 53
7.9 Title to Properties................................................................................. 54
7.10 Taxes............................................................................................... 54
7.11 Financial Condition................................................................................. 54
7.12 Environmental Matters............................................................................... 55
7.13 Regulated Entities.................................................................................. 56
7.14 No Burdensome Restrictions.......................................................................... 56
7.15 Copyrights, Patents, Trademarks and Licenses, etc................................................... 56
7.16 Subsidiaries........................................................................................ 56
7.17 Insurance........................................................................................... 56
7.18 Full Disclosure..................................................................................... 56
7.19 ProSource Acquisition Agreement..................................................................... 57
ARTICLE VIII AFFIRMATIVE COVENANTS................................................................... 57
8.1 Financial Statements................................................................................ 57
8.2 Certificates; Other Information..................................................................... 58
8.3 Notices............................................................................................. 59
8.4 Preservation of Corporate Existence, etc............................................................ 60
8.5 Maintenance of Property............................................................................. 60
8.6 Insurance........................................................................................... 60
8.7 Payment of Obligations.............................................................................. 60
8.8 Compliance with Laws................................................................................ 61
8.9 Compliance with ERISA............................................................................... 61
8.10 Inspection of Property and Books and Records........................................................ 61
8.11 Environmental Laws.................................................................................. 61
8.12 Use of Proceeds..................................................................................... 61
8.13 Further Assurances.................................................................................. 61
8.14 INTENTIONALLY LEFT BLANK............................................................................ 62
8.15 Post-Closing Real Estate Matters.................................................................... 62
ARTICLE IX NEGATIVE COVENANTS...................................................................... 63
9.1 Limitation on Liens................................................................................. 63
9.2 Asset Dispositions, etc............................................................................. 65
9.3 Consolidations and Mergers.......................................................................... 66
9.4 Loans and Investments............................................................................... 66
9.5 Limitation on Indebtedness.......................................................................... 67
9.6 Transactions with Affiliates........................................................................ 68
9.7 Use of Proceeds..................................................................................... 69
9.8 Contingent Obligations.............................................................................. 69
9.9 Joint Ventures...................................................................................... 69
iii
5
Section Page
9.10 Rental Obligations.................................................................................. 69
9.11 Restricted Payments................................................................................. 70
9.12 Minimum Interest Coverage........................................................................... 71
9.13 Maximum Leverage.................................................................................... 71
9.14 ERISA............................................................................................... 71
9.15 Modification of Certain Agreements.................................................................. 72
9.16 Negative Pledges, Restrictive Agreements, etc....................................................... 72
9.17 Maximum Capital Expenditures........................................................................ 72
9.18 Change in Business.................................................................................. 73
9.19 Accounting Changes.................................................................................. 73
9.20 Restructuring Costs................................................................................. 73
9.21 Receivables Facility................................................................................ 73
9.22 Marketing Costs..................................................................................... 73
ARTICLE X EVENTS OF DEFAULT....................................................................... 74
10.1 Event of Default.................................................................................... 74
(a) Non-Payment................................................................................ 74
(b) Representation or Warranty................................................................. 74
(c) Specific Defaults.......................................................................... 74
(d) Other Defaults............................................................................. 74
(e) Cross-Default.............................................................................. 74
(f) Insolvency; Voluntary Proceedings.......................................................... 74
(g) Involuntary Proceedings.................................................................... 75
(h) ERISA...................................................................................... 75
(i) Monetary Judgments......................................................................... 75
(j) Non-Monetary Judgments..................................................................... 75
(k) Change of Control.......................................................................... 76
(l) Impairment of Security etc................................................................. 76
(m) NEHC....................................................................................... 76
10.2 Remedies............................................................................................ 76
10.3 Rights Not Exclusive................................................................................ 77
ARTICLE XI THE AGENTS.............................................................................. 77
11.1 Appointment and Authorization....................................................................... 77
11.2 Delegation of Duties................................................................................ 77
11.3 Liability of Administrative Agent................................................................... 77
11.4 Reliance by Administrative Agent.................................................................... 78
11.5 Notice of Default................................................................................... 78
11.6 Credit Decision..................................................................................... 79
11.7 Indemnification of Administrative Agent............................................................. 79
11.8 Administrative Agent in Individual Capacity......................................................... 80
11.9 Successor Agent..................................................................................... 80
11.10 Withholding Tax..................................................................................... 80
iv
6
Section Page
11.11 Collateral Matters.................................................................................. 82
11.12 Documentation Agent................................................................................. 82
ARTICLE XII MISCELLANEOUS........................................................................... 83
12.1 Amendments and Waivers.............................................................................. 83
12.2 Notices............................................................................................. 84
12.3 No Waiver; Cumulative Remedies...................................................................... 84
12.4 Costs and Expenses.................................................................................. 85
12.5 Company Indemnification............................................................................. 85
12.6 Payments Set Aside.................................................................................. 86
12.7 Successors and Assigns.............................................................................. 86
12.8 Assignments, Participations, etc.................................................................... 86
12.9 Confidentiality..................................................................................... 88
12.10 Set-off............................................................................................. 89
12.11 Automatic Debits of Fees............................................................................ 89
12.12 Notification of Addresses, Lending Offices, etc..................................................... 89
12.13 Counterparts........................................................................................ 89
12.14 Severability........................................................................................ 89
12.15 No Third Parties Benefited.......................................................................... 90
12.16 Governing Law and Jurisdiction...................................................................... 90
12.17 Waiver of Jury Trial................................................................................ 90
12.18 Entire Agreement.................................................................................... 91
v
7
SCHEDULES
Schedule 2.1 Commitments
Schedule 3.3 Existing Letters of Credit
Schedule 7.5 Litigation
Schedule 7.7 ERISA
Schedule 7.11 Permitted Obligations
Schedule 7.12 Environmental Matters
Schedule 7.15 Copyrights, Patents, Trademarks, Licenses and Related
Matters
Schedule 7.16 Subsidiaries and Minority Interests
Schedule 7.17 Insurance Matters
Schedule 9.1 Permitted Liens
Schedule 9.4 Existing Investments
Schedule 9.5 Permitted Indebtedness
Schedule 9.8 Contingent Obligations
Schedule 12.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Note
Exhibit E Form of Legal Opinion of Wachtell, Lipton, Xxxxx & Xxxx
Exhibit F Form of Legal Opinion of Xxxxx Xxxxx
Exhibit G Form of Assignment and Acceptance
Exhibit H Form of Guaranty
Exhibit I Form of NEHC Guaranty
Exhibit J Form of Borrowing Base Certificate
vi
8
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
May 21, 1998, among AmeriServe Food Distribution, Inc., a Delaware corporation
(the "Company"), the several financial institutions from time to time party to
this Agreement (collectively the "Lenders"; individually each a "Lender"), Bank
of America National Trust and Savings Association, as letter of credit issuing
bank, Bank of America National Trust and Savings Association, as administrative
agent for the Lenders, and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation,
as documentation agent.
WHEREAS, the Company, certain financial institutions, Bank of America
Illinois, as letter of credit issuing bank, and Bank of America National Trust
and Savings Association, as agent, are parties to a Second Amended and Restated
Credit Agreement dated as of July 11, 1997, as heretofore amended (as so amended
the "Existing Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Credit Agreement so as to, among other things, (a) amend the pricing,
certain covenants and certain other provisions of the Existing Credit Agreement,
(b) permit the acquisition of ProSource, Inc., a Delaware corporation and (c)
revise in certain respects the composition of the lender group; and
WHEREAS, the parties hereto intend that this Agreement and the Loan
Documents executed in connection herewith not effect a novation of the
obligations of the Company under the Existing Credit Agreement and the "Loan
Documents" (as defined in the Existing Credit Agreement), but merely a
restatement, and where applicable, an amendment to the terms governing such
obligations;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the Existing Credit Agreement shall be amended
and restated to read in its entirety as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following
meanings:
Acquisition means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
Acquisition EBITDA means for any four fiscal quarter period, if
the Company makes an Acquisition during such period, the EBITDA of such
acquired entity as if the Acquisition had taken place on the first day
of such period.
9
Adjusted EBITDA means as at the end of any fiscal quarter for
the Computation Period then ending (a) the Company's consolidated
EBITDA plus (b) Receivables Financing Costs to the extent deducted in
the calculation of EBITDA plus (c) any cash restructuring charges which
are reflected in the operating expenses of the Company's income
statement (but not in excess of $15,000,000 in fiscal year 1998,
$25,000,000 in fiscal year 1999 and $25,000,000 in fiscal year 2000)
plus (d) AmeriServe Marketing Program Costs which are reflected in
operating expenses taken between the date hereof and December 31, 1998
in an amount not in excess of $30,000,000 plus (e) ProSource Marketing
Program Costs which are reflected in operating expenses taken between
the date hereof and December 31, 1998 in an amount not to exceed
$25,000,000 plus (f) for the purpose of the Leverage Ratio only, LTM
EBITDA for any four fiscal quarter period ending on or before December
26, 1998 plus (g) costs reflected in operating expenses associated with
the X.X. Xxxxxxx computer system conversion so long as those expenses
represent integration costs and there is a corresponding reduction in
the amount of Capital Expenditures permitted for such fiscal year
pursuant to Section 9.17; provided that for the purpose of the
calculation of the Leverage Ratio only, Acquisition EBITDA (not
including any Acquisition EBITDA related to the ProSource Acquisition)
will be added in the calculation of Adjusted EBITDA; provided, further
that for the purpose of the calculation of the Leverage Ratio only, for
any calculations including the second fiscal quarter of 1998, Adjusted
EBI'XXX shall be calculated on a pro forma basis as if the ProSource
Acquisition had occurred on the first day of the second fiscal quarter
of 1998; and provided, further, that no amounts added back to
Consolidated Net Income pursuant to the definition of EBITDA shall be
added back a second time pursuant to this definition.
Adjusted Interest Expense means Interest Expense plus, without
duplication, Receivables Financing Costs.
Administrative Agent means B of A in its capacity as agent for
the Lenders hereunder, and any successor agent arising under Section
11.9.
Administrative Agent's Payment Office means the address for
payments set forth on Schedule 12.2 hereto in relation to the
Administrative Agent, or such other address as the Administrative Agent
may from time to time specify.
Affected Lender means any Lender that has given notice to the
Company (which has not been rescinded) of (i) any obligation by the
Company to pay any amount pursuant to Section 4.1 or 4.3 or (ii) the
occurrence of any circumstances of the nature described in Section 4.2.
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. 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, membership
2
10
interests, by contract, or otherwise, or in the case of any Lender
which is an investment fund, any other fund which is advised by the
same investment advisor or an Affiliate thereof.
Agent-Related Persons means B of A and any successor
Administrative Agent arising under Section 11.9 and any successor
letter of credit issuing bank hereunder, together with their respective
Affiliates (including, in the case of B of A, the Arranger), and the
officers, directors, employees, agents and attorneys- in-fact of such
Persons and Affiliates.
Agents means the Administrative Agent and the Documentation
Agent.
Agreement means this Credit Agreement.
AmeriServ Acquisition means the acquisition by the Company of
the stock of AmeriServ Food Company in January 1996.
AmeriServe Marketing Program Costs means Marketing Costs of the
Company and its Subsidiaries (other than ProSource and its
Subsidiaries).
Applicable Base Rate Margin means (a) initially, 0.75% and (b)
on and after any date specified below on which the Applicable Base Rate
Margin is to be adjusted the rate per annum set forth in the table
below opposite the applicable Leverage Ratio:
LEVERAGE RATIO APPLICABLE BASE RATE MARGIN
-------------- ---------------------------
Less than 2.0 to 1.0 0.25%
Less than 2.5 to 1.0 0.50%
but greater than or equal to 2.0 to 1.0
Less than 3.0 to 1.0 0.75%
but greater than or equal to 2.5 to 1.0
Less than 3.5 to 1.0 1.0%
but greater than or equal to 3.0 to 1.0
Equal to or greater than 3.5 to 1.0 1.25%
The Applicable Base Rate Margin shall be adjusted, to the extent
applicable, 45 days (or, in the case of the last calendar quarter of
any year, 90 days) after the end of each calendar quarter, based on the
Leverage Ratio as of the last day of such calendar quarter commencing
with the calendar quarter ending December 26, 1998; it being understood
that if the Company fails to deliver the financial statements as
required by subsection 8.1(a) or 8.1(b), as applicable, and the related
Compliance Certificate required by subsection 8.2(b) by the 45th day
(or, if applicable, the 90th day) after any calendar quarter the
Applicable Base Rate Margin shall be 1.25% for any Loan bearing
interest based on the Base Rate until such financial statements and
Compliance Certificate are delivered.
3
11
Applicable Offshore Rate Margin means (a) initially 2.00% and
(b) on and after any date specified below on which the Applicable
Offshore Rate Margin is to be adjusted the rate per annum set forth in
the table below opposite the applicable Leverage Ratio:
LEVERAGE RATIO APPLICABLE OFFSHORE RATE MARGIN
-------------- -------------------------------
Less than 2.0 to 1.0 1.50%
Less than 2.5 to 1.0 1.75%
but greater than or equal to 2.0 to 1.0
Less than 3.0 to 1.0 2.00%
but greater than or equal to 2.5 to 1.0
Less than 3.5 to 1.0 2.25%
but greater than or equal to 3.0 to 1.0
Equal to or greater than 3.5 to 1.0 2.50%
The Applicable Offshore Rate Margin shall be adjusted, to the extent
applicable, 45 days (or, in the case of the last calendar quarter of
any year, 90 days) after the end of each calendar quarter, based on the
Leverage Ratio as of the last day of such quarter commencing with the
calendar quarter ending December 26, 1998; it being understood that if
the Company fails to deliver the financial statements required by
subsection 8.1(a) or 8.1(b), as applicable, and the related Compliance
Certificate required by subsection 8.2(b) by the 45th day (or, if
applicable, the 90th day) after any calendar quarter, the Applicable
Offshore Rate Margin shall be 2.50% for Loans bearing interest based on
the Offshore Rate until such financial statements and Compliance
Certificate are delivered.
Approved Bank has the meaning specified in the definition of
"Cash Equivalent Investments".
Arranger means BancAmerica Xxxxxxxxx Xxxxxxxx, a Delaware
corporation.
Assignee has the meaning specified in subsection 12.8(a).
Attorney Costs means and includes all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel.
Bankruptcy Code means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by B of
A in San Francisco, California, as its "reference rate." (The
"reference rate" is a rate set by B of A based upon various factors
including B of 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.)
4
12
Any change in the reference rate announced by B of A shall take
effect at the opening of business on the day specified in the public
announcement of such change.
Base Rate Loan means a Loan that bears interest based on the
Base Rate or an L/C Advance.
BofA means Bank of America National Trust and Savings
Association, a national banking association.
Borrowing means a borrowing hereunder consisting of Loans of
the same Type made to the Company on the same day by the Lenders under
Article II, and, other than in the case of Base Rate Loans, having the
same Interest Period.
Borrowing Base means an amount equal to 60% of the net amount
(after deduction of such reserves and allowances as the Administrative
Agent or the Required Lenders reasonably deem proper and necessary
based on customary credit and collection criteria utilized by asset
based lenders) of the Eligible Inventory, as set forth in the most
recent Borrowing Base Certificate.
Borrowing Base Certificate means a certificate in substantially
the form attached hereto as Exhibit J.
Borrowing Date means any date on which a Borrowing occurs under
Section 2.3.
Business Day means any day other than a Saturday, Sunday or
other day on which commercial banks in San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to
any Offshore Rate Loan, means such a day on which dealings are carried
on in the applicable offshore dollar 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 expenditures which, in
accordance with GAAP, would be required to be capitalized and shown on
the consolidated balance sheet of the Company, but (i) excluding
expenditures made in connection with the replacement, substitution or
restoration of assets to the extent financed (A) from insurance
proceeds (or other similar recoveries) paid on account of the loss of
or damage to the assets being replaced or restored or (B) with awards
of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced and (ii) excluding
expenditures incurred by the creation of Capitalized Lease Obligations
and financed thereby.
5
13
Capitalized Lease Obligations means all monetary obligations of
the Company or any of its Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other
Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a
penalty.
Cash Collateralize means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the Agents, the Issuing
Lender and the Lenders, as additional collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative Agent and the
Issuing Lender (which documents are hereby consented to by the
Lenders). Derivatives of such term shall have a corresponding meaning.
The Company hereby grants the Administrative Agent, for the benefit of
the Agents, the Issuing Lender and the Lenders, a security interest in
all such cash and deposit account balances. Cash collateral shall be
maintained in blocked, interest bearing deposit accounts at B of A.
Cash Equivalent Investments shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than one year from the
date of acquisition, (ii) marketable direct obligations issued by any
State of the United States of America or any local government or other
political subdivision thereof rated (at the time of acquisition of such
security) at least BBB by Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or Baa2 the
equivalent thereof by Xxxxx'x Investors Service, Inc. ("Moody's")
having maturities of not more than one year from the date of
acquisition, (iii) U.S. dollar denominated time deposits, certificates
of deposit and bankers' acceptances of (x) any Lender, (y) any domestic
commercial bank of recognized standing having capital and surplus in
excess of $250,000,000 or (z) any bank whose short-term commercial
paper rating (at the time of acquisition of such security) by S&P of at
least A-2 or the equivalent thereof (any such bank, an "Approved
Bank"), in each case with maturities of not more than six months from
the date of acquisition, (iv) commercial paper and variable or fixed
rate notes issued by any Lender or Approved Bank or by the parent
company of any Lender or Approved Bank and commercial paper and
variable rate notes issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating (at the
time of acquisition of such security) of at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's, or
guaranteed by any industrial company with a long-term unsecured debt
rating (at the time of acquisition of such security) of at least BBB or
the equivalent thereof by S&P or at least Baa2 or the equivalent
thereof by Moody's and in each case maturing within one year after the
date of acquisition, (v) repurchase agreements with any Lender or any
primary dealer maturing within one year from the date of acquisition
that are fully
6
14
collateralized by investment instruments that would otherwise be Cash
Equivalent Investments; provided that the terms of such repurchase
agreements comply with the guidelines set forth in the Federal
Financial Institutions Examination Council Supervisory Policy --
Repurchase Agreements of Depository Institutions With Securities
Dealers and Others, as adopted by the Comptroller of the Currency on
October 31, 1985 and (vi) loan participations in aggregate of no more
than $10,000,000 having maturities of not more than 30 days from the
date of the acquisition.
Change of Control means the failure of (a) Xxxxxxx or its
shareholders, or any thereof, to own directly or indirectly, in excess
of 50% of the voting power of all issued and outstanding shares of
stock of the Company; (b) NEHC to own directly 100% of the outstanding
shares of voting stock of the Company (other than shares under stock
options held by, or issued under stock options to, directors, officers,
employees and former directors not in excess of 10% of the shares of
voting stock of the Company); or (c) Xxxxxxx Inc. or its shareholders
as of the date hereof, or any thereof, to own at least 50% of the
outstanding shares of voting stock of Xxxxxxx. For purposes of this
definition, voting stock of a corporation shall not include capital
stock of such corporation if such stock has only the minimal voting
rights required by such corporation's jurisdiction of organization with
respect to any capital stock issued by such corporation.
Closing Date means the date on which all conditions precedent
set forth in Sections 6.1 and 6.2 are satisfied or waived by all
Lenders.
Code means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
Collateral means any collateral granted to the Administrative
Agent for the benefit of the Agents, or the Lenders, to secure the
Obligations of the Company, or any Guarantor, under any Loan Document.
Collateral Documents means the Security Agreement, the Pledge
Agreement, the Subsidiary Pledge Agreement, the Trademark Security
Agreement, the NEHC Pledge Agreement, the ProSource Trademark Security
Agreement and the Mortgages.
Commitment means, as to each Lender, the commitment of such
Lender to make Loans pursuant to Section 2.1. The initial amount of
each Lender's Commitment is set forth in Schedule 2.1.
Commitment Fee Rate means 0.50%.
Compliance Certificate means a certificate substantially in the
form of Exhibit C.
Computation Period means as at any fiscal quarter end, the
period of four consecutive quarters then ending or in the case of the
Interest Coverage Ratio, if shorter, the period commencing on the first
day of the third fiscal quarter of 1998.
7
15
Consolidated Net Income means, with respect to the Company and
its Subsidiaries for any period, the net income (or loss) of the
Company and its Subsidiaries for such period.
Contingent Obligation means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease, dividend
(declared and not paid), letter of credit or other obligation (the
"primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor,
(ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof (each, a "Guaranty Obligation"); (b) with respect to
any Surety Instrument (other than any Letter of Credit) issued for the
account of that Person or as to which that Person is otherwise liable
for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or
other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever
made or tendered, or such services are ever performed or tendered; or
(d) with respect to any Hedging Agreement. The amount of any Contingent
Obligation shall, in the case of Guaranty Obligations, be deemed equal
to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and in the case of other Contingent Obligations, shall
be equal to the maximum reasonably anticipated liability in respect
thereof.
Contractual Obligation means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or
any of its property is bound.
Conversion/Continuation Date means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
Corporate Allocations means the amount paid by the Company to
Xxxxxxx for managerial and administration services performed by Xxxxxxx
for the Company.
8
16
Credit Extension means and includes (a) the making of any Loans
hereunder, and (b) the Issuance of any Letters of Credit hereunder
(including the Existing Letters of Credit).
Default means any event or circumstance which, with the giving
of notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
DU means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
Documentation Agent means Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation in its capacity as documentation agent for the
Lenders hereunder.
Dollars, dollars and $ each mean lawful money of the United
States.
EBITDA means, for any Computation Period, the sum of
(a) Consolidated Net Income of the Company for such period
excluding, to the extent reflected in determining such Consolidated Net
Income, extraordinary gains and losses for such period and
non-recurring gains and charges,
plus
(b) to the extent deducted in determining Consolidated Net
Income, Interest Expense, income tax expense, depreciation, depletion
and amortization for such period.
Effective Amount means (i) with respect to any Loans on any
date, the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Loans
occurring on such date; and (ii) with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
occurring on such date and any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.
Eligible Assignee means (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in
the country in which it is organized or another country which is also a
member of the OECD; and (iii) a Person that is primarily engaged in the
business of commercial banking and that is (A) a Subsidiary of a
Lender, (B) a Subsidiary of a Person of which a Lender is a Subsidiary,
or (C) a Person of which a Lender is a Subsidiary.
9
17
Eligible Inventory means, at the time of any determination
thereof, all Inventory of the Company or any of its Subsidiaries
arising in the ordinary course of business of such Company or
Subsidiary, calculated on a FIFO basis (except the Inventory of
ProSource may be calculated on a weighted moving average basis until
the X.X. Xxxxxxx software conversion is completed), as to which the
following requirements have been fulfilled to the reasonable
satisfaction of the Administrative Agent:
(a) the Company or such Subsidiary has lawful and
absolute title to such Inventory;
(b) the Company or such Subsidiary has the full and
unqualified right to assign and xxxxx x Xxxx in such Inventory to the
Administrative Agent as security for the Obligations and any
obligations arising under Hedging Agreements;
(c) pursuant to the Security Agreement, all of such
Inventory is subject to a Lien in favor of the Agent for the benefit of
the Lenders, which Lien would be prior to the rights of, and
enforceable as such against, any other Person other than any rights
under contract or law of any lessor of premises on which the Inventory
is located provided that the value of Eligible Inventory shall be
calculated net of any such rights, which rights shall be assumed to be
equal to two months rent unless otherwise determined by the Company or
the Administrative Agent;
(d) none of the Inventory is subject to any Lien in favor
of any Person other than the Lien of the Administrative Agent pursuant
to the Security Agreement, other than any rights under contract or law
of any lessor of premises on which the Inventory is located provided
that the value of Eligible Inventory shall be calculated net of any
such rights, which rights shall be assumed to be equal to two months
rent unless otherwise demonstrated by the Company or the Administrative
Agent;
(e) none of such Inventory is obsolete, unsalable, damaged,
or otherwise unfit for sale or further processing;
(f) the use of all of such Inventory complies with the
rules and regulations of the Federal Fair Labor Standards Act of 1932
(including Sections 206 and 207 thereof), and any rules or regulations
promulgated thereunder;
(g) none of such Inventory includes an earned rebate or, to
the extent it does, such portion that represents an earned rebate shall
not be included in the calculation of the amount of the Eligible
Inventory;
(h) such Inventory is recorded net of cash discounts
taken from vendors; and
(i) such Inventory includes a freight adjustment only to
the extent it is actually incurred.
10
18
Any Inventory which is at any time Eligible Inventory, but which subsequently
falls to meet any of the foregoing requirements, shall forthwith cease to be
Eligible Inventory.
Environmental Claims means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for 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, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
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) the failure to make a required contribution to a
Pension Plan if such failure is sufficient to give rise to a Lien under
Section 302(f) of ERISA; (c) a withdrawal by the Company 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; (d) a complete or
partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (e) 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 Multiemployer Plan; (f) 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 Multiemployer Plan; or
(g) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Company or any ERISA Affiliate.
Event of Default means any of the events or circumstances
specified in Section 10.1.
Exchange Act means the Securities and Exchange Act of 1934, and
regulations promulgated thereunder.
Existing Credit Agreement has the meaning specified in the
recitals.
11
19
Existing Letters of Credit means the letters of credit
described in Schedule 3.3.
Federal Funds Rate means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent.
Fee Letter has the meaning specified in subsection 2.10(a).
FRB means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
GAAP means generally accepted accounting principles 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); provided that for the purpose of calculating any financial
covenant or financial ratio, GAAP shall mean such generally accepted
accounting principles which are applicable to the circumstances as of
the date hereof and provided further that upon a change in GAAP which
would, if applicable, affect the calculation of financial covenants or
financial ratios, the parties shall discuss the amendment of such
covenants and ratios and the definition of GAAP.
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.
Guarantor means (a) NEHC; (b) as of the date hereof, each
Subsidiary listed on Schedule 7.16; and (c) thereafter, the Persons
referred to in clauses (a) and (b) and each other Person which from
time to time executes and delivers a counterpart of the Guaranty.
Guaranty means the guaranty of the Guarantors (other than NEHC)
in substantially the form of Exhibit H.
Guaranty Obligation has the meaning specified in the definition
of Contingent Obligation.
12
20
Hedging Agreement means any agreement (including any master
agreement and any agreement, whether or not in writing, relating to any
single transaction) that is an interest rate swap agreement, basis
swap, forward rate agreement, commodity swap, commodity option, equity
or equity index swap or option, bond option, interest rate option,
forward foreign exchange agreement, rate cap, collar or floor
agreement, currency swap agreement, cross-currency rate swap agreement,
swaption, currency option or any other, similar agreement (including
any option to enter into any of the foregoing).
Xxxxxxx means Xxxxxxx Industries, Inc., a Delaware
corporation.
Honor Date has the meaning specified in subsection 3.3(c).
Impermissible Qualification means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such
opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause such Obligor to be in default of any of its
obligations under Sections 9.12 or 9.13.
Indebtedness of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken
or assumed as the deferred purchase price of property or services
(other than trade payables entered into in the ordinary course of
business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments (it being
understood that undrawn letters of credit are contingent reimbursement
obligations); (d) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in
connection with the acquisition of property, assets or businesses; (e)
all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
Capital Lease Obligations; (g) all net obligations with respect to
Hedging Agreements; (h) all indebtedness referred to in clauses (a)
through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; and (i)
all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (g) above.
13
21
Indemnified Obligations has the meaning specified in Section
12.5.
Indemnified Person has the meaning specified in Section 12.5.
Independent Auditor has the meaning specified in Section
8.l(b).
Initial Financial Projections means the projections provided to
the Lenders prior to the date hereof included in the Information
Memorandum dated May, 1998.
Insolvency Proceeding means (a) any case, action or proceeding
before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding- up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshaling of
assets for creditors, or other, similar arrangement in respect of its
creditors generally or any substantial portion of its creditors;
undertaken under U.S. federal, state or foreign law, including the
Bankruptcy Code.
Intercreditor Agreement means the Intercreditor Agreement dated
as of July 11, 1997 between the Administrative Agent and Norwest Bank
Minnesota, National Association as Trustee under the Pooling and
Servicing Agreement, as affirmed as of the date hereof.
Interest Coverage Ratio means, for the Computation Period most
recently ended on or before such date, the ratio of (a) Adjusted EBITDA
for such Computation Period to (b) Adjusted Interest Expense for such
Computation Period.
Interest Expense means, for any period, the consolidated
interest expense (calculated without offset for interest income) of the
Company and its Subsidiaries for such period including interest expense
related to Capitalized Lease Obligations.
Interest Payment Date means, as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Loan, the last Business Day of each calendar
quarter; provided,however, that if any Interest Period for an Offshore
Rate Loan exceeds three months, the date that falls three months after
the beginning of such Interest Period is also an Interest Payment Date.
Interest Period means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Company in its Notice
of Borrowing or Notice of Conversion/Continuation;
provided that:
14
22
(i) 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;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period shall extend beyond the
Revolving Termination Date.
Inventory means all goods now or hereafter (a) held by the
Company or any of its Subsidiaries for sale or lease, (b) furnished or
to be furnished by the Company or any of its Subsidiaries to a third
party under any contract of service, (c) held by the Company or any of
its Subsidiaries as raw materials or work in process or (d) used or
consumed by the Company or any of its Subsidiaries in the ordinary
course of business.
Invested Amount means, at any time, the outstanding principal
amount that is owed to holders (other than Subsidiaries of the Company)
of securities issued by, or loans to, the trust established under the
Pooling and Servicing Agreement or any other trust established with
respect to a Qualified Receivables Transaction.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date has the meaning specified in subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to
incorporate the Existing Letters of Credit into this Agreement, or to
issue or to extend the expiry of, or to renew or increase the amount
of, such Letter of Credit; and the terms "Issued," "Issuing" and
"Issuance" have corresponding meanings.
Issuing Lender means B of A in its capacity as issuer of one or
more Letters of Credit hereunder, together with any replacement letter
of credit issuer arising under subsection 11.1(b) or Section 11.9.
Joint Venture means a single-purpose corporation, partnership,
limited liability company, joint venture or other similar legal
arrangement (whether created by contract or conducted through a
separate legal entity) now or hereafter formed by the Company or any of
its Subsidiaries with another Person in order to conduct a common
venture or enterprise with such Person. No Receivables Subsidiary or
Special Purpose Vehicle shall be considered a Joint Venture.
15
23
L/C Advance means each Lender's participation in any L/C
Borrowing in accordance with its Percentage.
L/C Amendment Application means an application form for
amendment of outstanding standby or commercial documentary letters of
credit as shall at any time be in use at the Issuing Lender, as the
Issuing Lender shall request.
L/C Application means an application form for issuances of
standby or commercial documentary letters of credit as shall at any
time be in use at the Issuing Lender, as the Issuing Lender shall
request.
L/C Borrowing means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Loans under
subsection 3.3(c).
L/C Commitment means the commitment of the Issuing Lender to
Issue, and the commitment of the Lenders severally to participate in
Letters of Credit (including the Existing Letters of Credit) from time
to time Issued or outstanding under Article III, in an aggregate amount
not to exceed on any date the amount of $50,000,000, as the same shall
be reduced as a result of a reduction in the L/C Commitment pursuant to
Section 2.5; provided that the L/C Commitment is a part of the combined
Commitments, rather than a separate, independent commitment.
L/C Fee Rate means, at any time, the Applicable Offshore Rate
Margin; provided that each of the foregoing rates shall be increased by
2 % at any time an Event of Default exists.
L/C Obligations means, at any time, the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Lender's
standard form documents for letter of credit issuances.
Lender has the meaning specified in the introductory clause
hereto. References to the "Lenders" shall include B of A, including in
its capacity as Issuing Lender; for purposes of clarification only, to
the extent that B of A may have any rights or obligations in addition
to those of the Lenders due to its status as Issuing Lender, its status
as such will be specifically referenced.
Lending Office means, as to any Lender, the office or offices
of such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending
16
24
Office", as the case may be, on Schedule 12.2, or such other office or
offices as such Lender may from time to time notify the Company and the
Agent.
Letters of Credit means the Existing Letters of Credit and any
letters of credit (whether standby letters of credit or commercial
documentary letters of credit) Issued by the Issuing Lender pursuant to
Article III.
Leverage Ratio means, as at any fiscal quarter end for the
Company and its Subsidiaries on a consolidated basis, the ratio of
(i) Senior Secured Debt as of such fiscal quarter end
to
(ii) Adjusted EBITDA.
Lien means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease.
Loan has the meaning specified in Section 2.1, and may be a
Base Rate Loan or an Offshore Rate Loan (each a "Type" of Loan).
Loan Documents means this Agreement, any Notes, the Fee Letter,
the L/C-Related Documents, the Pledge Agreement, the Subsidiary Pledge
Agreements, the Guaranty, the NEHC Guaranty, the Security Agreement,
the Trademark Security Agreement, the ProSource Trademark Security
Agreement the Mortgages, and all other documents delivered to the Agent
or any Lender in connection herewith.
LTM EBITDA means (a) $112,013,000 for the four fiscal quarter
period ended the end of the second fiscal quarter of 1998, (b)
$74,676,000 for the four fiscal quarter period ended the end of the
third fiscal quarter of 1998 and (c) $37,338,000 for the four fiscal
quarter period ended with the end of the fourth fiscal quarter of 1998.
Marketing Costs means expenses on the Company's consolidated
income statement or reductions of balance sheet reserves arising in
conjunction with the entering into by the Company and its Subsidiaries
of service agreements with certain customers.
17
25
Margin Stock means margin stock" as such term is defined in
Regulation T, U or X of the FRB.
Material Adverse Effect means (a) a material adverse change in,
or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Company or the Company and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the Company, NEHC or any
Subsidiary to perform under any Loan Document and to avoid any Event of
Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company or any Subsidiary
of any Loan Document.
Xxxxx'x has been specified in the definition of "Cash
Equivalent Investments".
Mortgage means a mortgage, leasehold mortgage, deed of trust or
similar document granting a Lien on real property in appropriate form
for filing or recording in the applicable jurisdiction and otherwise
reasonably satisfactory to the Administrative Agent.
Mortgaged Property means the real property subject to a
Mortgage.
Multiemployer Plan means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which the Company or any
ERISA Affiliate may have any liability.
NEHC means Nebco Xxxxx Holding Company, a Delaware
corporation.
NEHC Guaranty means the guaranty of NEHC in substantially the
form of Exhibit I.
NEHC Pledge Agreement means the Amended and Restated Pledge
Agreement dated the date hereof between NEHC and the Administrative
Agent.
Note means a promissory note executed by the Company in favor
of a Lender pursuant to subsection 2.2(b), in substantially the form of
Exhibit D.
Notice of Borrowing means a notice in substantially the form of
Exhibit A.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company or any Subsidiary to any Lender, the Agent, or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
OECD has the meaning specified in the definition of "Eligible
Assignee."
18
26
Offshore Rate means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined
by the Administrative Agent as follows:
Offshore Rate = IBOR
--------------------------------------
1.00 - Eurodollar Reserve Percentage
where,
Eurodollar Reserve Percentage means for any day for any
Interest Period the maximum reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on
such day (whether or not applicable to any Lender) under
regulations issued from time to time by the FRB 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"); and
IBOR means the rate of interest per annum determined by the
Agent as the rate at which dollar deposits in the approximate
amount of B of A's Offshore Rate Loan for such Interest Period
would be offered by B of A's Grand Cayman Branch, Grand Cayman
B.W.I. (or such other office as may be designated for such
purpose by B of A), to major banks in the offshore dollar
interbank market at their request at approximately 12:00 noon
(New York City time) two Business Days prior to the
commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as
to all Offshore Rate Loans then outstanding as of the effective
date of any change in the Eurodollar Reserve Percentage.
Offshore Rate Loan means a Loan that bears interest based on
the Offshore Rate.
Organization Documents means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation.
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.
Participant has the meaning specified in subsection 12.8(d).
19
27
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
Pension Plan means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA, other than a Multiemployer
Plan, with respect to which a Company or any ERISA Affiliate may have
any liability.
Percentage means, as to any Lender, the percentage which (a)
the amount of such Lender's Commitment is of (b) the aggregate amount
of all of the Lenders' Commitments.
Permitted Indebtedness has the meaning specified in Section
9.5.
Permitted Liens has the meaning specified in Section 9.1.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
PFS means PFS, a division of the PepsiCo, Inc.
PFS Acquisition means the acquisition of PFS by the Company
pursuant to the PFS Acquisition Agreement.
PFS Acquisition Agreement means the Asset Purchase Agreement
between PepsiCo, Inc. and NEHC dated May 23, 1997.
Plan means an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Company sponsors or maintains or to which the
Company makes, is making, or is obligated to make contributions and
includes any Pension Plan.
Pledge Agreement means the Amended and Restated Pledge
Agreement dated the date hereof between the Company and the
Administrative Agent.
Pooling and Servicing Agreement means the Pooling and Servicing
Agreement dated as of July 1, 1997 among AmeriServe Funding
Corporation, AmeriServe Food Distribution, Inc., and Norwest Bank
Minnesota, National Association, as Trustee, as amended, amended and
restated, supplemented or otherwise modified from time to time.
Preferred Stock means preferred stock of the Company issued on
terms acceptable to the Required Lenders.
ProSource has the meaning specified in the recitals.
ProSource Acquisition means the acquisition of ProSource by the
Company pursuant to the ProSource Acquisition Agreement.
20
28
ProSource Acquisition Agreement means the Agreement and Plan of
Merger by and among the Company, Steamboat Acquisition Corp. and
ProSource dated as of January 29, 1998.
ProSource Marketing Program Costs mean Marketing Costs of
ProSource and its Subsidiaries.
ProSource Trademark Security Agreement means the Trademark
Security Agreement dated the date hereof between ProSource and the
Administrative Agent.
Purchase Money Note means a promissory note evidencing the
obligation of a Receivables Subsidiary to pay all or any portion of the
purchase price for Receivables and other Receivables Program Assets to
the Company or any other Receivables Seller in connection with a
Qualified Receivables Transaction, which note shall be repaid from cash
available to the maker of such note, other than (i) cash required to be
held as reserves pursuant to Receivables Documents, (ii) amounts paid
in respect of interest, principal and (iii) other amounts owing under
Receivables Documents and amounts paid in connection with the purchase
of newly generated Receivables.
Qualified Receivables Transaction means (i) the Receivables
Bridge Facilities and (ii) any transaction or series of transactions
that may be entered into by the Company and/or any Subsidiary pursuant
to which the Company and/or any Subsidiary may sell, convey or
otherwise transfer to a Receivables Subsidiary (in the case of a
transfer by the Company and/or any other Receivables Seller) and any
other Person (in the case of a transfer by a Receivables Subsidiary),
or may grant a security interest in, any Receivables Program Assets
(whether now existing or arising in the future); provided that:
(a) no portion of the indebtedness or any other obligations
(contingent or otherwise) of a Receivables Subsidiary or Special
Purpose Vehicle (i) is guaranteed by the Company or any other
Receivables Seller (excluding guarantees of obligations pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates
the Company or any other Receivables Seller in any way other than
pursuant to Standard Securitization Undertakings or (iii) subjects any
property or asset of the Company or any other Receivables Seller,
directly or indirectly, contingently or otherwise, to the satisfaction
of obligations incurred in such transactions, other than pursuant to
Standard Securitization Undertakings;
(b) neither the Company nor any other Receivables Seller has
any material contract, agreement, arrangement or understanding with a
Receivables Subsidiary or a Special Purpose Vehicle (except in
connection with a Purchase Money Note or Qualified Receivables
Transaction) other than on terms no less favorable to the Company or
such Receivables Seller than those that might be obtained at the time
from Persons that are not affiliates of the Company, other than fees
payable in the ordinary course of business in connection with servicing
accounts receivable; and
21
29
(c) the Company and the other Receivables Sellers do not have
any obligation to maintain or preserve the financial condition of a
Receivables Subsidiary or a Special Purpose Vehicle or cause such
entity to achieve certain levels of operating results.
Receivable Stated Amount means, with respect to a Receivables
Investor Instrument, the maximum amount of the funding commitment with
respect thereto.
Receivables means all rights of the Company or any other
Receivables Seller to payments (whether constituting accounts, chattel
paper, instruments, general intangibles or otherwise) arising from the
sale of goods, services or future services by the Company and/or a
Receivables Seller, and includes the right to payment of any interest
or finance charge and other obligations with respect thereto and any
other rights to payment recorded as a receivable.
Receivables Bridge Facilities means the Receivables Documents
in effect at, or becoming effective contemporaneously with, the Closing
Date.
Receivables Documents means (x) each and every receivables
purchase agreement, pooling and servicing agreement, series supplement
thereto, certificate purchase agreement, guaranty, Purchase Money Note,
license agreement, sublicense agreement, credit agreement, agreement to
acquire undivided interests or other agreement to transfer, or create a
security interest in, Receivables Program Assets, in each case as
amended, modified, supplemented or amended and restated and in effect
from time to time entered into by the Company, another Receivables
Seller and/or a Receivables Subsidiary, and (y) each other instrument,
agreement and other document entered into by the Company, any other
Receivables Seller and/or a Receivables Subsidiary relating to the
transactions contemplated by the items referred to in clause (x) above,
in each case as amended, modified, supplemented or amended and restated
and in effect from time to time.
Receivables Financing Costs means any loss attributable to the
sale of Receivables Program Assets.
Receivables Investor Instruments means trust certificates,
purchased interests or any other securities, instruments or agreements
evidencing an interest in the Receivables Program Assets held by a
Person other than the Company and its Subsidiaries (excluding
Receivables Subsidiaries).
Receivables Program Assets means (a) all Receivables which are
described as being transferred by the Company, another Receivables
Seller and/or a Receivables Subsidiary pursuant to the Receivables
Documents, (b) all Receivables Related Assets, and (c) all collections
(including recoveries) and other proceeds of the assets described in
the foregoing clauses.
Receivables Program Obligations means (a) notes, trust
certificates, undivided interests, partnership interests or other
interests representing the right to be paid a
22
30
specified principal amount from the Receivables Program Assets, and (b)
related obligations of the Company, a Subsidiary and/or a Special
Purpose Vehicle (including, without limitation, rights in respect of
interest or yield, breach of warranty claims and expense reimbursement
and indemnity provisions). The Receivables Program Obligations shall
also include Purchase Money Notes and guarantees by the Company of
obligations pursuant to Standard Securitization Undertakings.
Receivables Related Assets means (i) any rights arising under
the documentation governing or relating to Receivables (including
rights in respect of liens securing such Receivables and other credit
support in respect of such Receivables), (ii) any collections and other
proceeds of such Receivables, (iii) any lockboxes or bank accounts, all
documents, instruments and agreements relating to such lockboxes or
bank accounts, and any amounts from time to time deposited therein,
(iv) spread accounts, trust accounts and other similar accounts (and
any amounts on deposit therein) established in connection with a
Qualified Receivables Transaction, (v) any warranty, indemnity,
dilution and other intercompany claim arising out of Receivables
Documents and (vi) other assets (including those contemplated by
Receivables Documents) which are customarily transferred or in respect
of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable.
Receivables Seller means the Company and any Subsidiary of the
Company (other than a Receivables Subsidiary) which is a party to a
Receivables Document.
Receivables Subsidiary means a special purpose wholly-owned
subsidiary of the Company created in connection with the transactions
contemplated by a Qualified Receivables Transaction, which subsidiary
engages in no activities other than those incidental to such Qualified
Receivables Transaction and which is designated as a Receivables
Subsidiary by the Company's Board of Directors. Any such designation by
the Board of Directors shall be evidenced by filing with the
Administrative Agent a certified copy of the resolution of the Board of
Directors of the Company giving effect to such designation and an
officers' certificate certifying, to the best of such officer's
knowledge and belief after consulting with counsel, that such
designation, and the transactions in which the Receivables Subsidiary
will engage, comply with the requirements of the definition of
Qualified Receivables Transaction.
Register has the meaning specified in Section 12.8.
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.
Required Lenders means, at any time, Lenders having an
aggregate Percentage of 51% or more.
23
31
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 or the
president of the Company, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer of
the Company, or any other officer having substantially the same
authority and responsibility.
Restructuring Costs means any cash integration expenditures
related to the AmeriServ Acquisition, the PFS Acquisition or the
ProSource Acquisition incurred by the Company reflected as (i) a
non-operating expense in the Company's income statement, (ii) a
reduction of the restructuring reserve on the Company's balance sheet
(not including Marketing Costs), or (iii) restructuring charges taken
in the years 1998, 1999, and 2000 to the extent added to Adjusted
EBITDA pursuant to clause (c) of the definition of "Adjusted EBITDA;"
provided that "Restructuring Costs" shall not include any expenditures
related to the X.X. Xxxxxxx software installation.
Revolving Termination Date means the earlier to occur of:
(a) June 30, 2003; and
(b) the date on which the Commitments terminate
in accordance with the provisions of this Agreement.
S&P has the meaning specified in the definition of "Cash
Equivalent Investments".
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
Security Agreement means the Second Amended and Restated
Security Agreement dated the date hereof between the Company, its
Subsidiaries and the Administrative Agent.
Senior Secured Debt means, as to the Company and its
Subsidiaries, (i) the Obligations, (ii) Capitalized Lease Obligations,
(iii) obligations with respect to drawn Surety Instruments, (iv)
Invested Amounts and (v) other senior secured obligations.
Senior Subordinated Notes means the Company's $500,000,000 10?%
senior subordinated notes due July 15, 2007.
24
32
Senior Unsecured Notes means the Company's $350,000,000 8?%
senior unsecured notes due October 15, 2007.
Special Purpose Vehicle means a trust, partnership or other
special purpose Person established by the Company and/or its
Subsidiaries to implement a Qualified Receivables Transaction.
Standard Securitization Undertakings means representations,
warranties, covenants and indemnities entered into by the Company
and/or any Subsidiary which are reasonably customary in an accounts
receivable transaction.
Subordinated Debt means all unsecured Indebtedness of the
Company for money borrowed which is subordinated, upon terms reasonably
satisfactory to the Required Lenders, in right of payment to the
payment in full in cash of all Obligations, which is payable to NEHC
and on which interest is payable in kind, not in cash, until after June
30, 2003.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, limited liability partnership,
joint venture or other business entity of which more than 50% of the
voting stock, membership interests 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 Company. No Special Purpose Vehicle will
be considered a "Subsidiary".
Subsidiary Pledge Agreement means the Pledge Agreement dated
the date hereof between ProSource, ProSource Services Corporation and
the Administrative Agent.
Surety Instruments means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
Tax Sharing Agreement means that certain Tax Sharing Agreement
effective as of the first day of the 1989 consolidated return year
between Xxxxxxx and the Company as successor by merger to certain
former subsidiaries of the Company.
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 each Lender's net income by the jurisdiction (or 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.
25
33
Trademark Security Agreement means the Amended and Restated
Trademark Security Agreement dated July 11, 1997 between AmeriServ
Food Company and the Administrative Agent.
Type has the meaning specified in the definition of "Loan."
UCP has the meaning specified in Section 3.9.
Unfunded Pension Liability means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value
of that 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.
United States and U.S. each means the United States of
America.
Wholly-Owned Subsidiary means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.2 Other 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 this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references are to
this 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."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this 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.
26
34
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This 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) This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to the Agents,
the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the Agents
merely because of the Agents' or Lenders' involvement in their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDIT
2.1 Amounts and Terms of Commitments. Each Lender severally agrees,
on the terms and conditions set forth herein, to make loans to the Company (each
such loan, a "Loan"), from time to time on any Business Day during the period
from the Closing Date to the Revolving Termination Date, in an aggregate amount
not to exceed at any time outstanding such Lender's Percentage of $200,000,000;
provided that, after giving effect to any Borrowing of Loans, the aggregate
amount of all Loans plus the Effective Amount of all L/C Obligations shall not
exceed the lesser of (i) the Commitments or (ii) the Borrowing Base. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company may borrow under this subsection 2.1, prepay under Section 2.6 and
reborrow under this subsection 2.1.
2.2 Loan Accounts. (a) The Loans made by each Lender and the
Letters of Credit Issued by the Issuing Lender shall be evidenced by one or more
accounts or records maintained by such Lender or Issuing Lender, as the case may
be, in the ordinary course of business. The accounts or records maintained by
the Administrative Agent, the Issuing Lender and each Lender shall be rebuttable
presumptive evidence of the amount of the Loans made by the Lenders to the
Company and the Letters of Credit Issued for the account of the Company, and the
interest and
27
35
payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Company hereunder to
pay any amount owing with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Lender made through the
Administrative Agent, the Loans made by such Lender may be evidenced by one or
more Notes, instead of loan accounts. Each such Lender shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Company with
respect thereto. Each such Lender is irrevocably authorized by the Company to
endorse its Note(s) and each Lender's record shall be conclusive absent manifest
error; provided, however, that the failure of a Lender to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Company hereunder or under any such Note to such
Lender.
2.3 Procedure for Borrowing. (a) Each Borrowing shall be made upon
the Company's irrevocable written notice delivered to the Administrative Agent
in the form of a Notice of Borrowing, which notice must be received by the
Administrative Agent (i) prior to 8:30 a.m. (San Francisco time) two Business
Days prior to the requested Borrowing Date, in the case of Offshore Rate Loans;
and (ii) prior to 8:30 a.m. (San Francisco time) on the requested Borrowing
Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall
be in an aggregate minimum amount of $500,000 and a multiple of
$100,000 provided, that if the amount of the unused Commitments
or the availability under the Borrowing Base is less than
$500,000, then the Company may borrow such amount in Base Rate
Loans;
(B) the requested Borrowing Date, which
shall be a Business Day,
(C) the Type of Loans comprising the
Borrowing; and
(D) the duration of the Interest Period
applicable to such Loans included in such notice. If the Notice
of Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans, such
Interest Period shall be one month.
(b) The Administrative Agent will promptly notify each
Lender of its receipt of any Notice of Borrowing and of the amount of such
Lender's share of that Borrowing based upon such Lender's Percentage.
(c) Each Lender will make the amount of its share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Administrative Agent's Payment Office by 11:00 a.m. (San Francisco time)
on the Borrowing Date requested by the Company in funds immediately available to
the Administrative Agent. The proceeds of all such
28
36
Loans will then be made available to the Company by the Administrative Agent at
such office by crediting the account of the Company on the books of B of A with
the aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent or as
otherwise set forth in the Notice of Borrowing.
(d) After giving effect to any Borrowing, there may not be
more than six different Interest Periods in effect.
2.4 Conversion and Continuation Elections. (a) The Company may,
upon irrevocable written notice to the Administrative Agent in accordance with
subsection 2.4(b):
(i) elect, as of any Business Day, in
the case of Base Rate Loans, or as of the last day of the applicable
Interest Period, in the case of any other Type of Loans, to convert any
such Loans (or any part thereof in an amount not less than $500,000, or
that is in an integral multiple of $100,000 in excess thereof) into
Loans of any other Type; or
(ii) elect as of the last day of the
applicable Interest Period, to continue any Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less
than $500,000 or that is in an integral multiple of $100,000 in excess
thereof);
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $500,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to continue such Loans as, and convert such Loans into, Offshore
Rate Loans shall terminate.
(b) The Company shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent (i) not later
than 8:30 a.m. (San Francisco time) at least two Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued
as Offshore Rate Loans; and (ii) not later than 8:30 a.m. (San Francisco time)
on the Conversion/Continuation Date, if the Loans are to be converted into Base
Rate Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of Loans to be
converted or renewed;
(C) the Type of Loans resulting from the
proposed conversion or continuation; and
(D) other than in the case of conversions into
Base Rate Loans, the duration of the requested Interest Period.
29
37
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans, the Company has failed to timely select a new
Interest Period to be applicable to such Offshore Rate Loans, or if any Default
or Event of Default then exists, the Company shall be deemed to have elected to
convert such Offshore Rate Loans into Base Rate Loans effective as of the
expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each
Lender of its receipt of a Notice of Conversion/Continuation, or, if no timely
notice is provided by the Company, the Administrative Agent will promptly notify
each Lender of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given held
by each Lender.
(e) Unless the Required Lenders otherwise agree, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation
of Loans, there may not be more than six different Interest Periods in effect.
2.5 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than five Business Days' prior notice to the Administrative
Agent, terminate the Commitments, or permanently reduce the Commitments by an
aggregate minimum amount of $5,000,000 or any multiple of $100,000 in excess
thereof; unless, after giving effect thereto and to any prepayments of Loans
made on the effective date thereof, (a) the Effective Amount of all Loans, and
L/C Obligations together would exceed the amount of the Commitments then in
effect, or (b) the Effective Amount of all L/C Obligations then outstanding
would exceed the L/C Commitment. Once reduced in accordance with this Section,
the Commitments may not be increased. Any reduction of the Commitments shall be
applied to each Lender according to its Percentage. If and to the extent
specified by the Company in the notice to the Administrative Agent, some or all
of the reduction in the combined Commitments shall be applied to reduce the L/C
Commitment. All accrued commitment and letter of credit fees to, but not
including, the effective date of any reduction or termination of Commitments,
shall be paid on the effective date of such reduction or termination.
2.6 Optional Prepayments. (a) Subject to Section 4.4 the Company
may, from time to time, upon irrevocable written notice to the Administrative
Agent (which notice must be received by 8:30 a.m. (San Francisco time) on the
day of prepayment in the case of Base Rate Loans and 8:30 a.m. (San Francisco
time) two Business Days prior to the date of prepayment in the case of Offshore
Rate Loans), ratably prepay any Borrowing of Loans in whole or in part, in an
aggregate amount of $500,000 or a higher integral multiple of $100,000.
(b) Each notice of prepayment shall specify the date and
amount of such prepayment and the Loans to be prepaid. The Administrative Agent
will promptly notify each Lender of its receipt of any such notice and of such
Lender's share of such prepayment based
30
38
upon such Lender's Percentage. If any such notice is given by the Company, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid and any amounts required
pursuant to Section 4.4. Each prepayment of Loans shall be applied to each
Lender's Loans according to such Lender's Percentage.
2.7 Mandatory Prepayments of Loans.
(a) If on any date the Effective Amount of L/C Obligations
exceeds the L/C Commitment, the Company shall Cash Collateralize on such date
the outstanding Letters of Credit in an amount equal to the excess of the
maximum amount then available to be drawn under the Letters of Credit over the
Aggregate L/C Commitment.
(b) If on any day the outstanding Loans plus the Effective
Amount of the L/C Obligations exceeds the Borrowing Base, the Company shall on
such date make a prepayment of the Loans equal to the excess and, if the Loans
shall be prepaid in full, Cash Collateralize the L/C Obligations by the
remainder of such excess. Any prepayment shall be applied to each Lender's Loans
according to its Percentage.
2.8 Repayment.
The Company shall pay to the Administrative Agent, for the account of
the Lenders, on the Revolving Termination Date the aggregate principal amount of
all Loans outstanding on such date.
2.9 Interest. (a) Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be (and subject to
the Company's right to convert to other Types of Loans under Section 2.4), plus
the Applicable Offshore Rate Margin or Applicable Base Rate Margin, as the case
may be.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any prepayment
of Loans under Section 2.6 or 2.7 for the portion of the Loans so prepaid and
upon payment (including prepayment) in full thereof and, during the existence of
any Event of Default, interest shall be paid on demand of the Agent at the
request or with the consent of the Required Lenders.
(c) Notwithstanding subsection (a) of this Section, while
any Event of Default exists or after acceleration, the Company shall pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans, at a rate
per annum which is determined by adding 2% per annum to the Applicable Base Rate
Margin or Applicable Offshore Rate Margin then in effect for such Loans;
provided, however, that, on and after the expiration of any Interest Period
applicable to any Offshore Rate Loan outstanding on the date of occurrence of
such Event of Default or acceleration, the principal amount of such Loan shall,
during the continuation of such Event of Default or after acceleration, bear
interest at a rate per annum equal to the Base Rate plus the Applicable Base
Rate Margin then in effect plus 2%.
31
39
(d) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Lender hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Lender would be contrary
to the provisions of any law applicable to such Lender limiting the highest rate
of interest that may be lawfully contracted for, charged or received by such
Lender, and in such event the Company shall pay such Lender interest at the
highest rate permitted by applicable law.
2.10 Fees. In addition to certain fees described in Section 3.8:
(a) Arrangement, Agency Fees. The Company shall pay to the
Administrative Agent for its own account and the Arranger's own account, the
fees as required by the letter agreement ("Fee Letter") between the Company and
the Arranger and the Administrative Agent dated May 15,1998, as amended.
(b) Commitment Fees. The Company shall pay to the
Administrative Agent for the account of each Lender a commitment fee equal to
the Commitment Fee Rate times the average daily unused portion of such Lender's
Commitment, computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter. For purposes of calculating utilization under this
subsection, the Commitments shall be deemed used to the extent of the Effective
Amount of Loans then outstanding, plus the Effective Amount of L/C Obligations
then outstanding. Such commitment fee shall accrue from the Closing Date to the
Revolving Termination Date and shall be due and payable quarterly in arrears on
the last Business Day of each fiscal quarter commencing on the first such date
after the date hereof through the Revolving Termination Date, with the final
payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Commitments under Section 2.5 or
Section 2.7, the accrued commitment fee calculated for the period ending on such
date shall also be paid on the date of such reduction or termination, with the
following quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The
commitment fees provided in this subsection shall accrue at all times after the
above- mentioned commencement date, including at any time during which one or
more conditions in Article VI are not met.
2.11 Computation of Fees and Interest. (a) All computations of
interest for Base Rate Loans when the Base Rate is determined by B of A's
"reference rate" shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed
(which results in more interest being paid than if computed on the basis of a
365-day year). Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the last day
thereof.
32
40
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Company and the
Lenders in the absence of manifest error.
2.12 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Administrative Agent for the account of the Lenders at the Administrative
Agent's Payment Office, and shall be made in dollars and in immediately
available funds, no later than 11:00 a.m. (San Francisco time) on the date
specified herein. The Administrative Agent will promptly distribute to each
Lender its Percentage of any such payment. Any payment received by the
Administrative Agent later than 2:00 p.m. (San Francisco time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition
of "Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made 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.
(c) Unless the Administrative Agent receives notice from
the Company prior to the date on which any payment is due to the Lenders that
the Company will not make such payment in full as and when required, the
Administrative Agent may assume that the Company has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may) but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Company has not made such
payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
2.13 Payments by the Lenders to the Administrative Agent. (a) Unless
the Administrative Agent receives notice from a Lender on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, at least
one Business Day prior to the date of such Borrowing, that such Lender will not
make available as and when required hereunder to the Administrative Agent for
the account of the Company the amount of that Lender's Percentage, the
Administrative Agent may assume that each Lender has made such amount available
to the Administrative Agent in immediately available funds on the Borrowing Date
and the Administrative Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Lender shall not have made its full amount
available to the Administrative Agent in immediately available funds and the
Administrative Agent in such circumstances has made available to the Company
such amount, that Lender shall on the Business Day following such Borrowing Date
make such amount available to the Administrative Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the
Administrative Agent submitted to any Lender with respect to amounts owing under
this subsection (a) shall be conclusive, absent
33
41
manifest error. If such amount is so made available, such payment to the
Administrative Agent shall constitute such Lender's Loan on the date of
Borrowing for all purposes of this Agreement. If such amount is not made
available to the Administrative Agent on the Business Day following the
Borrowing Date, the Administrative Agent will notify the Company of such failure
to fund and, upon demand by the Administrative Agent, the Company shall pay such
amount to the Administrative Agent for the Administrative Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(b) The failure of any Lender to make any Loan on any
Borrowing Date shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be responsible for the
failure of any other Lender to make the Loan to be made by such other Lender on
any Borrowing Date.
2.14 Sharing of Payments, etc. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share of such payment
(determined in accordance with the provisions of this Agreement), such Lender
shall immediately (a) notify the Administrative Agent of such fact, and (b)
purchase from the other Lenders such participations in the Loans made by them as
shall be necessary to cause such purchasing Lender to share the excess payment
pro rata with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Company agrees that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 12.10 hereof)
with respect to such participation as fully as if such Lender were the direct
creditor of the Company in the amount of such participation. The Administrative
Agent will keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments.
2.15 Increase in Commitments. The Company may, from time to time on
any Business Day on or before July 21, 1998, with the written consent of the
Administrative Agent, increase the Commitments by delivering a written request
at least three Business Days prior to the desired effective date of such
increase (the "Commitment Increase") identifying additional Lender(s) (or
additional Commitments for existing Lenders) and the amount of its commitment
(or additional amount of its Commitment); provided, however, that any increase
of the Commitments shall not cause the aggregate Commitments to exceed
$200,000,000. The effective date of the Commitment Increase shall be agreed upon
by the Company and the Administrative Agent. Upon the effectiveness thereof, the
Lenders' Percentages shall be adjusted. If any Lender shall incur any
34
42
cost or expense with respect to the Commitment Increase, including any loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain any Offshore Rate Loans or from fees to terminate the deposits from
which such funds were obtained, the Company will upon notice from such Lender
reimburse such Lender therefor.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms and
conditions set forth herein (i) the Issuing Lender agrees, (A) from time to time
on any Business Day during the period from the Closing Date to the Revolving
Termination Date to issue Letters of Credit for the account of the Company, and
to amend or renew Letters of Credit previously issued by it, in accordance with
subsections 3.2(c) and 3.2(d), and (B) to honor drafts under the Letters of
Credit; and (ii) the Lenders severally agree to participate in Letters of Credit
Issued for the account of the Company; provided, that the Issuing Lender shall
not be obligated to Issue, and no Lender shall be obligated to participate in,
any Letter of Credit if as of the date of Issuance of such Letter of Credit (the
"Issuance Date") (1) the Effective Amount of all L/C Obligations plus the
Effective Amount of all Loans exceeds the combined Commitments, (2) the
participation of any Lender in the Effective Amount of all L/C Obligations plus
the Effective Amount of the Loans of such Lender exceeds such Lender's
Commitment, or (3) the Effective Amount of L/C Obligations exceeds the L/C
Commitment. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company's ability to obtain Letters of Credit shall be
fully revolving, and, accordingly, the Company may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have expired or
which have been drawn upon and reimbursed.
(b) The Issuing Lender is under no obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Issuing Lender from Issuing such Letter of
Credit, or any Requirement of Law applicable to the Issuing Lender or
any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the Issuing Lender
shall prohibit, or request that the Issuing Lender refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender with respect to such
Letter of Credit any restriction, reserve or capital requirement (for
which the Issuing Lender is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Issuing Lender in good xxxxx xxxxx material
to it;
(ii) the Issuing Lender has received
written notice from any Lender, the Administrative Agent or the
Company, on or prior to the Business Day prior to the requested date of
Issuance of such Letter of Credit, that one or more of the applicable
conditions contained in Article VI is not then satisfied;
35
43
(iii) the expiry date of any requested
Letter of Credit is (A) more than 365 days after the date of Issuance,
unless the Required Lenders have approved such expiry date in writing,
or (B) after the Revolving Termination Date, unless all of the Lenders
have approved such expiry date in writing;
(iv) the expiry date of any requested
Letter of Credit is prior to the maturity date of any financial
obligation to be supported by the requested Letter of Credit;
(v) any requested Letter of Credit does
not provide for drafts, or is not otherwise in form and substance
acceptable to the Issuing Lender, or the Issuance of a Letter of Credit
shall violate any applicable policies of the Issuing Lender;
(vi) any standby Letter of Credit is for
the purpose of supporting the issuance of any letter of credit by any
other Person;
(vii) such Letter of Credit is in a face
amount less than $25,000 or denominated in a currency other than
Dollars; or
(viii) it is not a standby letter of
credit.
3.2 Issuance, Amendment and Renewal of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Company received by the Issuing Lender (with a copy sent by the Company to the
Administrative Agent) at least four days (or such shorter time as the Issuing
Lender may agree in a particular instance in its sole discretion) prior to the
proposed date of issuance. Each such request for issuance of a Letter of Credit
shall be by facsimile, confirmed immediately in an original writing, in the form
of an L/C Application, and shall specify in form and detail satisfactory to the
Issuing Lender: (i) the proposed date of issuance of the Letter of Credit (which
shall be a Business Day); (ii) the face amount of the Letter of Credit; (iii)
the expiry date of the Letter of Credit; (iv) the name and address of the
beneficiary thereof; (v) the documents to be presented by the beneficiary of the
Letter of Credit in case of any drawing thereunder; (vi) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the Issuing Lender may require.
(b) At least two Business Days prior to the Issuance of any
Letter of Credit, the Issuing Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy
of the L/C Application or L/C Amendment Application from the Company and, if
not, the Issuing Lender will provide the Administrative Agent with a copy
thereof. Unless the Issuing Lender has received notice on or before the Business
Day immediately preceding the date the Issuing Lender is to issue a requested
Letter of Credit from the Administrative Agent (A) directing the Issuing Lender
not to issue such Letter of Credit because such issuance is not then permitted
under subsection 3.1(a) as a result of the limitations set forth in clauses (1)
through (3) thereof or subsection 3.1 (b))(ii); or (B) that one or more
conditions specified in Article VI are not then satisfied; then, subject to the
terms and conditions
36
44
hereof, the Issuing Lender shall, on the requested date, issue a Letter of
Credit for the account of the Company in accordance with the Issuing Lender's
usual and customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Termination Date, the Issuing Lender
will, upon the written request of the Company received by the Issuing Lender
(with a copy sent by the Company to the Administrative Agent) at least five days
(or such shorter time as the Issuing Lender may agree in a particular instance
in its sole discretion) prior to the proposed date of amendment, amend any
Letter of Credit issued by it. Each such request for amendment of a Letter of
Credit shall be made by facsimile, confirmed immediately in an original writing,
made in the form of an L/C Amendment Application and shall specify in form and
detail satisfactory to the Issuing Lender: (i) the Letter of Credit to be
amended; (ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment; and (iv)
such other matters as the Issuing Lender may require. The Issuing Lender shall
be under no obligation to amend any Letter of Credit if: (A) the Issuing Lender
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms of this Agreement; or (B) the beneficiary of any
such Letter of Credit does not accept the proposed amendment to the Letter of
Credit. No Lender shall be obligated to participate in any amended Letter of
Credit if such Lender would have no obligation at such time to participate in
such Letter of Credit in its amended form under the terms of this Agreement if
such Letter of Credit were newly issued pursuant to Section 3.1. The
Administrative Agent will promptly notify the Lenders of the receipt by it of
any L/C Application or L/C Amendment Application.
(d) The Issuing Lender and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the Revolving Termination Date, at
the option of the Company and upon the written request of the Company received
by the Issuing Lender (with a copy sent by the Company to the Administrative
Agent) at least five days (or such shorter time as the Issuing Lender may agree
in a particular instance in its sole discretion) prior to the proposed date of
notification of renewal, the Issuing Lender shall be entitled to authorize the
automatic renewal of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile, confirmed immediately
in an original writing, in the form of an L/C Amendment Application, and shall
specify in form and detail satisfactory to the Issuing Lender: (i) the Letter of
Credit to be renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised expiry date
of the Letter of Credit; and (iv) such other matters as the Issuing Lender may
require. The Issuing Lender shall be under no obligation so to renew any Letter
of Credit if: (A) the Issuing Lender would have no obligation at such time to
issue or amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of any such Letter of Credit does not accept
the proposed renewal of the Letter of Credit. No Lender shall be obligated to
participate in any renewal of any Letter of Credit if such Lender would have no
obligation at such time to participate in such Letter of Credit in its renewed
form under the terms of this Agreement if such Letter of Credit were newly
issued pursuant to Section 3.1. If any outstanding Letter of Credit shall
provide that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Issuing Lender that such Letter of Credit shall not be
renewed, and if at the time of renewal the Issuing Lender would be
37
45
entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this subsection 3.2(d) upon the request of the Company but the
Issuing Lender shall not have received any L/C Amendment Application from the
Company with respect to such renewal or other written direction by the Company
with respect thereto, the Issuing Lender shall nonetheless be permitted to allow
such Letter of Credit to renew, and the Company and the Lenders hereby authorize
such renewal, and, accordingly, the Issuing Lender shall be deemed to have
received an L/C Amendment Application from the Company requesting such renewal.
(e) The Issuing Lender may, at its election (or as required
by the Administrative Agent at the direction of the Required Lenders), deliver
any notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving
Termination Date.
(f) This Agreement shall control in the event of any
conflict with any L/C Related Document (other than any Letter of Credit).
(g) The Issuing Lender will also deliver to the
Administrative Agent, concurrently or promptly following its delivery of a
Letter of Credit, or amendment to or renewal of a Letter of Credit, to an
advising bank or a beneficiary, a true and complete copy of each such Letter of
Credit or amendment to or renewal of a Letter of Credit.
3.3 Existing Letters of Credit; Risk Participations, Drawings and
Reimbursements. (a) On and after the Closing Date, the Existing Letters of
Credit shall be deemed for all purposes, including for purposes of the fees to
be collected pursuant to subsections 3.8(a) and 3.8(c), and reimbursement of
costs and expenses to the extent provided herein, Letters of Credit outstanding
under this Agreement and entitled to the benefits of this Agreement and the
other Loan Documents, and shall be governed by the applications and agreements
pertaining thereto and by this Agreement. Each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Lender on the Closing Date a participation in each such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) such Lender's
Percentage times (ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively. For purposes of
subsection 2.1(e) and subsection 2.10(b), the Existing Letters of Credit shall
be deemed to utilize pro rata the Commitment of each Lender.
(b) Immediately upon the Issuance of each Letter of Credit
in addition to those described in subsection 3.3(a), each Lender shall be deemed
to, and hereby irrevocably and unconditionally agrees to, purchase from the
Issuing Lender a participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the Percentage of such
Lender, times (ii) the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively. For purposes of subsection
2.1(e), each Issuance of a Letter of Credit shall be deemed to utilize the
Commitment of each Lender by an amount equal to the amount of such
participation.
38
46
(c) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuing Lender
will promptly notify the Company. The Company shall reimburse the Issuing Lender
prior to 10:00 a.m. (San Francisco time), on each date that any amount is paid
by the Issuing Lender under any Letter of Credit (each such date, an "Honor
Date"), in an amount equal to the amount so paid by the Issuing Lender. In the
event the Company fails to reimburse the Issuing Lender for the full amount of
any drawing under any Letter of Credit by 10:00 a.m. (San Francisco time) on the
Honor Date, the Issuing Lender will promptly notify the Administrative Agent and
the Administrative Agent will promptly notify each Lender thereof, and the
Company shall be deemed to have requested that Loans consisting of Base Rate
Loans be made by the Lenders to be disbursed on the Honor Date under such Letter
of Credit, subject to the amount of the unutilized portion of the Commitment and
subject to the conditions set forth in Section 6.3. Any notice given by the
Issuing Lender or the Agent pursuant to this subsection 3.3(c) may be oral if
immediately confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(d) Each Lender shall upon any notice pursuant to
subsection 3.3(e) make available to the Administrative Agent for the account of
the Issuing Lender an amount in Dollars and in immediately available funds equal
to its Percentage of the amount of the drawing, whereupon the participating
Lenders shall (subject to subsection 3.3(e)) each be deemed to have made a Loan
consisting of a Base Rate Loan to the Company in that amount. If any Lender so
notified fails to make available to the Administrative Agent for the account of
the Issuing Lender the amount of such Lender's Percentage of the amount of the
drawing by no later than 12:00 noon (San Francisco time) on the Honor Date, then
interest shall accrue on such Lender's obligation to make such payment, from the
Honor Date to the date such Lender makes such payment, at a rate per annum equal
to the Federal Funds Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the Honor
Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Lender to effect such payment on
such date shall not relieve such Lender from its obligations under this Section
3.3.
(e) With respect to any unreimbursed drawing that is not
converted into Loans consisting of Base Rate Loans to the Company in whole or in
part, because of the Company's failure to satisfy the conditions set forth in
Section 6.3 or for any other reason, the Company shall be deemed to have
incurred from the Issuing Lender an L/C Borrowing in the amount of such drawing,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at a rate per annum equal to the Base Rate plus the
Applicable Base Rate Margin plus 2% per annum, and each Lender's payment to the
Issuing Lender pursuant to subsection 3.3(d) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this
Section 3.3.
39
47
(f) Each Lender's obligation in accordance with this
Agreement to make the Loans or L/C Advances, as contemplated by this Section
3.3, as a result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Lender and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Issuing Lender, the Company or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided, however, that each
Lender's obligation to make Loans under this Section 3.3 is subject to the
conditions set forth in Section 6.3.
3.4 Repayment of Participations. (a) Upon (and only upon) receipt
by the Agent for the account of the Issuing Lender of immediately available
funds from the Company (i) in reimbursement of any payment made by the Issuing
Lender under the Letter of Credit with respect to which any Lender has paid the
Administrative Agent for the account of the Issuing Lender for such Lender's
participation in the Letter of Credit pursuant to Section 3.3 or (ii) in payment
of interest thereon, the Administrative Agent will pay to each Lender, in the
same funds as those received by the Administrative Agent for the account of the
Issuing Lender, the amount of such Lender's Percentage of such funds, and the
Issuing Lender shall receive the amount of the Percentage of such funds of any
Lender that did not so pay the Agent for the account of the Issuing Lender.
(b) If the Administrative Agent or the Issuing Lender is
required at any time to return to the Company, or to a trustee, receiver,
liquidator, custodian, or any official in any Insolvency Proceeding, any portion
of the payments made by the Company to the Administrative Agent for the account
of the Issuing Lender pursuant to subsection 3.4(a) in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Lender
shall, on demand of the Administrative Agent, forthwith return to the Agent or
the Issuing Lender the amount of its Percentage of any amounts so returned by
the Administrative Agent or the Issuing Lender plus interest thereon from the
date such demand is made to the date such amounts are returned by such Lender to
the Administrative Agent or the Issuing Lender, at a rate per annum equal to the
Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Lender. (a) Each Lender and the Company
agree that, in paying any drawing under a Letter of Credit, the Issuing Lender
shall not have any responsibility to obtain any document (other than any sight
draft and certificates expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of the Issuing Lender shall be liable
to any Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
40
48
(c) The Company hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Company's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of the Issuing Lender, shall be liable or responsible for any of the
matters described in clauses (i) through (vii) of Section 3.6; provided,
however, anything in such clauses to the contrary notwithstanding, that the
Company may have a claim against the Issuing Lender, and the Issuing Lender may
be liable to the Company, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Company which
the Company proves were caused by the Issuing Lender's willful misconduct or
gross negligence or the Issuing Lender's willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing: (i) the Issuing
Lender may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) the Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the Issuing Lender for a
drawing under a Letter of Credit, and to repay any L/C Borrowing and any drawing
under a Letter of Credit converted into Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or enforceability of
this Agreement or any L/C Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Company in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defense
or other right that the Company may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting),
the Issuing Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any
41
49
respect or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of
Credit;
(v) any payment by the Issuing Lender under any
Letter of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of any Letter of Credit; or any
payment made by the Issuing Lender under any Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of
any collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a guarantor.
3.7 Cash Collateral Pledge. Upon (i) the request of the Agent,
(A) if the Issuing Lender has honored any full or partial drawing request on any
Letter of Credit and such drawing has resulted in an L/C Borrowing hereunder, or
(B) if, as of the Revolving Termination Date, any Letters of Credit may for any
reason remain outstanding and partially or wholly undrawn, or (ii) the
occurrence of the circumstances described in subsection 2.7(a) requiring the
Company to Cash Collateralize Letters of Credit, then, the Company shall
immediately Cash Collateralize the Obligations in an amount equal to the L/C
Obligations.
3.8 Letter of Credit Fees. (a) The Company shall pay to the
Administrative Agent for the account of each of the Lenders a letter of credit
fee with respect to the Letters of Credit equal to L/C Fee Rate of the average
daily maximum amount available to be drawn of the outstanding Letters of Credit,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon Letters of Credit outstanding for that quarter as
calculated by the Administrative Agent. Such letter of credit fees shall be due
and payable quarterly in arrears on the last Business Day of each calendar
quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, through the Revolving
Termination Date (or such later date upon which the outstanding Letters of
Credit shall expire), with the final payment to be made on the Revolving
Termination Date (or such later expiration date).
(b) The Company shall pay to the Issuing Lender a letter of
credit fronting fee for each Letter of Credit Issued after the Closing Date by
the Issuing Lender equal to the rate set forth in the Fee Letter on the face
amount (or increased face amount, as the case may be) of such Letter of Credit.
Such Letter of Credit fronting fee shall be due and payable on each date of
Issuance of a Letter of Credit.
42
50
(c) The Company shall pay to the Issuing Lender from time
to time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Issuing Lender
relating to letters of credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice
for Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in the Letters of Credit) apply to the
Letters of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by the Company to each Lender
or the Administrative 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 Company shall pay all Other Taxes.
(b) The Company agrees to indemnify and hold harmless each
Lender and the Administrative 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 the Lender or the Administrative 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 30 days after the date the Lender or the Administrative
Agent makes written demand therefor.
(c) If the Company 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 Administrative 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
Administrative 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 Company shall make such
deductions and withholdings;
(iii) the Company shall pay the full
amount deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
(iv) the Company shall also pay to each
Lender or the Administrative 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 the
Lender would have received if such Taxes or Other Taxes had not been
imposed.
43
51
The Company shall not, however, be required to pay any amounts pursuant to
clause (i) of the preceding sentence to any Lender or the Issuing Lender, as the
case may be, organized under the laws of a jurisdiction outside of the United
States, unless such Lender or the Issuing Lender, as the case may be, has
provided to the Company, within sixty (60) days after the receipt by such Lender
or the Issuing Lender of a written request therefor, either (x) a facially
complete Internal Revenue Service Form 4224, Form 1001 or Form W-8 or other
applicable form, certificate or document prescribed by the Internal Revenue
Service of the United States certifying as to such Lender's or the Issuing
Lender's entitlement to an exemption from, or reduction of, United States
withholding tax on payments to be made hereunder or under any other Loan
Document or in respect of any Letter of Credit or tax on payments to made
hereunder or thereunder or (y) a letter stating that such Lender or the Issuing
Lender is unable lawfully to provide a properly completed and executed Form 4224
or Form 1001.
(d) Within 30 days after the date of any payment by the
Company of Taxes or Other Taxes, the Company shall furnish the Administrative
Agent the original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to the Agent.
(e) If the Company is required to pay additional amounts to
any Lender or the Administrative Agent pursuant to subsection (c) of this
Section, then such Lender shall use reasonable efforts (consistent with legal
and regulatory restrictions) to change the jurisdiction of its Lending Office so
as to eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the 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
Offshore Rate Loans, then, on notice thereof by the Lender to the Company
through the Administrative Agent, any obligation of that Lender to make Offshore
Rate Loans shall be suspended until the Lender notifies the Administrative Agent
and the Company that the circumstances giving rise to such determination no
longer exist.
(b) If a Lender determines that it is unlawful to maintain
any Offshore Rate Loan, the Company shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Administrative Agent),
prepay in full such Offshore 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 the Lender may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Lender may not lawfully continue to maintain such Offshore
Rate Loan. If the Company is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Company shall borrow from the affected
Lender, in the amount of such repayment, a Base Rate Loan.
44
52
(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may elect,
by giving notice to the Lender through the Administrative Agent that all Loans
which would otherwise be made by the Lender as Offshore Rate Loans shall be
instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent
under this Section, the affected Lender shall designate a different Lending
Office with respect to its Offshore Rate Loans if such designation will avoid
the need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise disadvantageous to the Lender.
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 or 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 Offshore Rate Loan or participating in Letters of Credit, or, in the case of
the Issuing Lender, any increase in the cost to the Issuing Lender of agreeing
to issue, issuing or maintaining any Letter of Credit or of agreeing to make or
making, funding or maintaining any unpaid drawing under any Letter of Credit,
then the Company shall be liable for, and shall from time to time, upon demand
(with a copy of such demand to be sent to the Administrative Agent), pay to the
Administrative 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 the Lender (or its Lending Office) or any corporation controlling
the Lender with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Lender or any
corporation controlling the Lender and (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy and such
Lender's desired return on capital) that the amount of such capital is increased
as a consequence of its Commitments, loans, credits or obligations under this
Agreement, then, upon demand of such Lender to the Company through the
Administrative Agent, the Company shall pay to the Lender, from time to time as
specified by the Lender, additional amounts sufficient to compensate the Lender
(or such corporation) for such increase.
4.4 Funding Losses. The Company shall reimburse each Lender and
hold each Lender harmless from any loss or expense which the Lender may sustain
or incur as a consequence of:
(a) the failure of the Company to make on a timely basis
any payment of principal of any Offshore Rate Loan;
45
53
(b) the failure of the Company to borrow, continue or
convert a Loan after the Company has given (or is deemed to have given) a Notice
of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.6;
(d) the prepayment (including pursuant to Section 2.7) or
other payment (including after acceleration thereof) of an Offshore Rate Loan on
a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of the
relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Lenders under this Section and
under subsection 4.3(a), each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the IBOR used in determining the Offshore Rate for
such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable period,
whether or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or that the Offshore Rate applicable pursuant to
subsection 2.9(a) for any requested Interest Period with respect to a proposed
Offshore Rate Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Loan the Administrative Agent will promptly so notify
the Company and each Lender. Thereafter, the obligation of the Lenders to make
or maintain Offshore Rate Loans, hereunder shall be suspended until the
Administrative Agent revokes such notice in writing. Upon receipt of such
notice, the Company may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Company does not revoke
such Notice, the Lenders shall make, convert or continue the Loans, as proposed
by the Company, in the amount specified in the applicable notice submitted by
the Company, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans.
4.6 Substitution of Affected Lender. At any time any Lender is an
Affected Lender, the Company may replace such Affected Lender as a party to this
Agreement with one or more other bank(s) or financial institution(s)
satisfactory to the Agent (and upon notice from the Company such Affected Lender
shall assign pursuant to an Assignment and Acceptance Agreement, and without
recourse or warranty, its Commitments, if any, its Loans, its Note, its
participation in Letters of Credit, if any, and all of its other rights and
obligations hereunder to such replacement bank(s) or other financial
institution(s) for a purchase price equal to the sum of the principal
46
54
amount of the Loans so assigned, all accrued and unpaid interest thereon, its
ratable share of all accrued and unpaid non-use fees and Letter of Credit fees,
any amounts payable under Section 4.4 as a result of such Lender receiving
payment of any Eurodollar Loan prior to the end of an Interest Period therefor
and all other obligations owed to such Affected Lender hereunder).
4.7 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to the Lender hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error.
4.8 Survival. The agreements and obligations of the Company in this
Article IV shall survive the payment of all other Obligations.
ARTICLE V
COLLATERAL AND GUARANTY
5.1 Collateral--Personal Property. The Obligations shall be secured
by a first lien and security interest, subject only to Permitted Liens, in all
personal property of the Company and the Guarantors (other than NEHC) pursuant
to the Security Agreement, covering the Company's and such Guarantor's presently
existing and after-acquired Inventory, Accounts Receivable, General Intangibles,
Equipment, and the other collateral more particularly described therein and in
all stock owned by the Company and its Subsidiaries pursuant to the Pledge
Agreement and the Subsidiary Pledge Agreement; provided, however, that (i) the
Company will pledge not more than 65% of the stock owned in foreign Subsidiaries
and (ii) the Obligations shall not be secured by Receivables Program Assets
transferred to a Receivables Subsidiary with respect to a Qualified Receivables
Transaction.
5.2 Mortgages. The Obligations shall be secured by a first lien and
security interest, subject to Permitted Liens, in all owned real property of the
Company and its Subsidiaries (except foreign Subsidiaries) pursuant to the
Mortgages. The Obligations shall also be secured by a first lien and security
interest, subject to Permitted Liens, in (a) all leases of distribution centers
entered into after the date hereof, (b) all leases of distribution centers
subject to leasehold mortgages in favor of the Agent on the date hereof, and (c)
all leases related to the Orlando, Florida and Denver, Colorado distribution
centers. The Company shall use commercially reasonable efforts to provide
mortgages on all leases related to the national accounts division of ProSource.
The fee and leasehold mortgages described above are collectively called the
"Mortgages".
5.3 Guaranty. The Obligations shall be guaranteed by the Guarantors
pursuant to the Guaranty and the NEHC Guaranty. The Company shall cause each
Subsidiary hereafter acquired (other than a foreign Subsidiary) to become a
Guarantor and to become a party to the Security Agreement and, if it owns stock,
the Subsidiary Pledge Agreement.
47
55
5.4 Company Stock. The Obligations shall be secured by a first lien
and security interest in the stock of the Company pursuant to the NEHC Pledge
Agreement.
5.5 Intercreditor Agreement. The Lenders and other parties hereto
hereby authorize and direct the Administrative Agent to reaffirm the
Intercreditor Agreement. All of the parties to this Agreement hereby agree to be
bound by the Intercreditor Agreement as if they were parties thereto. No Lender
or other party hereto shall assign any of its rights or obligations under this
Agreement to any other Person unless such other Person shall have agreed in
writing to be bound by the terms of the Intercreditor Agreement as if such
Person were a party thereto.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions of Restatement. The amendment and restatement of the
Existing Credit Agreement and the obligation of each Lender to make its initial
Credit Extension hereunder is subject to the condition that the Administrative
Agent shall have received on or before the date of the initial Credit Extension
all of the following, in form and substance satisfactory to the Administrative
Agent and each Lender, and in sufficient copies for each Lender:
(a) Credit Agreement and Notes. This Agreement and the
Notes executed by each party thereto;
(b) Resolutions; Incumbency
(i) Copies of the resolutions of the
board of directors of the Company and each Subsidiary that may become
party to a Loan Document authorizing the transactions contemplated
hereby, certified as of the Closing Date by the Secretary or an
Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or
Assistant Secretary of the Company, and each Subsidiary that may become
party to a Loan Document certifying the names and true signatures of
the officers of the Company or such Subsidiary authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
(c) Organization Documents. Each of the articles or
certificate of incorporation and the bylaws of the Company and each Subsidiary
party to any Loan Document as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company or such Subsidiary as of the
Closing Date.
(d) Legal Opinions.
Opinions of Wachtell, Lipton, Xxxxx & Xxxx and Xxxxx
Xxxxx, counsel to the Company and its Subsidiaries and addressed to the Agents
and the Lenders, substantially in the form of Exhibits E and F;
48
56
(e) Certificate. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties
contained in Article VII are true and correct on and as of such date,
as though made on and as of such date;
(ii) no Default or Event of Default
exists or would result from the Credit Extension; and
(iii) there has occurred since the date of
the applicable fiscal year end financial statement referred to in
Section 7.11 no event or circumstance that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(f) Collateral Documents. The Collateral Documents
(excluding Mortgages of leased property), executed by the Company or the
applicable Guarantor, in appropriate form for recording, where necessary,
together with:
(i) copies of all UCC-1 and UCC-3
statements filed, registered or recorded to perfect the security
interests of the Administrative Agent for the benefit of the Lenders,
together with other evidence satisfactory to the Administrative Agent
that there has been filed, registered or recorded all financing
statements and other filings, registrations and recordings necessary
and advisable to perfect the Liens of the Administrative Agent for the
benefit of the Lenders in accordance with applicable law;
(ii) all certificates and instruments
representing the pledged Collateral, together with stock transfer
powers executed in blank with signatures guaranteed as the
Administrative Agent or the Lenders may specify;
(iii) evidence that all other actions
necessary or, in the opinion of the Administrative Agent or the
Lenders, desirable to perfect and protect the first priority security
interest created by the Collateral Documents have been taken;
(iv) funds sufficient to pay any filing
or recording tax or fee in connection with any and all UCC-l and UCC-3
financing statements and the Mortgages;
(v) evidence that all other actions
necessary or, in the opinion of the Administrative Agent or the
Lenders, desirable to perfect and protect the first priority Lien
created by the Collateral Documents, and to enhance the Administrative
Agent's ability to preserve and protect its interests in and access to
the Collateral, have been taken;
(g) Insurance Policies. Standard lenders' payable
endorsements with respect to the insurance policies or other instruments or
documents evidencing insurance coverage on the properties of the Company in
accordance with Section 8.6; and
49
57
(h) Other Documents. Such other approvals, opinions,
documents or materials as the Administrative Agent or any Lender may reasonably
request.
6.2 Other Conditions to Effectiveness of Restatement. The amendment
and restatement of the Existing Credit Agreement shall be subject, in addition
to the conditions set forth in Section 6.1, to the following conditions:
(a) ProSource Acquisition. The ProSource Acquisition shall
have occurred pursuant to the terms of the ProSource Acquisition Agreement
without material amendment or waiver.
(b) Equity Contribution. At least $50,000,000 in net cash
proceeds shall be contributed to the Company by NEHC on the Closing Date
pursuant to a common equity contribution.
(c) Accounts Receivables Securitization. Concurrently with
the initial Loan, the Company shall have received not less than $325,000,000 in
proceeds from the Receivables Bridge Facilities or another Qualified Receivables
Transaction.
(d) Indebtedness. All indebtedness for borrowed money of
ProSource and its Subsidiaries shall have been paid in full and all related
Liens shall have been released.
(e) Governmental Approvals. All governmental, shareholder
and third party consents, including Xxxx-Xxxxx-Xxxxxx clearance, and approvals
necessary in connection with the ProSource Acquisition, the financings and
equity issuances contemplated hereby and the continued operations of the
business of the Company and its Subsidiaries shall have been obtained and be in
full force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions upon the
ProSource Acquisition, or the financing thereof, in each case except for such
governmental and third party approvals which the failure to obtain would not,
individually or in the aggregate, have a Material Adverse Effect.
(f) Certificate. Company shall have delivered a Certificate
of its Chief Financial Officer to the effect that all the conditions set forth
in Sections 6.2(a) - (e) above shall have been accomplished.
(g) Borrowing Base Certificate. The Company shall have
delivered a Borrowing Base Certificate as of March 28, 1998 calculated on a pro
forma basis as if the ProSource Acquisition had taken place on such date.
(h) Purchase by Lenders. The Lenders shall have purchased
and sold appropriate amounts of the outstanding Loans under the Existing Credit
Agreement, to cause each Lender to hold its Percentage of the Loans, after
giving effect to this amendment and restatement. Each Lender, which shall have
its Percentage reduced to zero, shall have no further obligations under the
Existing Credit Agreement or this Agreement. If any Lender shall suffer a loss
50
58
as a result of the effectiveness of such purchase or sale being during an
Interest Period, the Company shall reimburse such Lender the amount of such
loss. Each such Lender shall furnish the Company with a certificate setting
forth the basis for determining the amount to be paid to it under this Section.
(i) Loans. After giving effect to the ProSource
Acquisition, no more than $50,000,000 in Loans shall be outstanding on the
Closing Date.
6.3 Conditions to All Credit Extensions. The obligation of each
Lender to make any Loan to be made by it (including its initial Loan) or to
continue or convert any Loan under Section 2.4 and the obligation of the Issuing
Lender to Issue any Letter of Credit (including the initial Letter of Credit) is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date, Conversion/Continuation Date or Issuance Date:
(a) Notice, Application. The Administrative Agent shall
have received (with, in the case of the initial Loan only, a copy for each
Lender) a Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable, or in the case of any Issuance of any Letter of Credit, the Issuing
Lender and the Administrative Agent shall have received an L/C Application or
L/C Amendment Application, as required under Section 3.2;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VII shall be true and correct on and
as of such Borrowing Date or Conversion/Continuation Date with the same effect
as if made on and as of such Borrowing Date or Conversion/Continuation Date
(except to the extent such representations and warranties expressly refer to an
earlier date, in which case they shall be true and correct as of such earlier
date); and
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Borrowing or continuation or conversion.
Each Notice of Borrowing, L/C Application or L/C Amendment Application submitted
by the Company hereunder shall constitute a representation and warranty by the
Company hereunder, as of the date of each such notice and as of each Borrowing
Date, or Issuance Date, as applicable, that the conditions in this Section 6.3
are satisfied.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each Lender that:
7.1 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
51
59
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification or license; and
(d) is in compliance with all Requirements of Law; except,
in each case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by the Company and its Subsidiaries of this Agreement
and each other Loan Document to which such Person is party, have been duly
authorized by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of that Person's
Organization Documents;
(b) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any document evidencing any Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or
(c) violate any Requirement of Law.
7.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company or
any of its Subsidiaries of this Agreement or any other Loan Document.
7.4 Binding Effect. This Agreement and each other Loan Document to
which the Company or any of its Subsidiaries is a party constitute the legal,
valid and binding obligations of the Company and any of its Subsidiaries to the
extent it is a party thereto, enforceable against such Person in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
7.5 Litigation. Except as specifically disclosed in Schedule 7.5,
there are no actions, suits, proceedings, claims or disputes pending, or to the
best knowledge of the Company, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or thereby;
or
52
60
(b) would reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
7.6 No Default. No Default or Event of Default exists or would
result from the incurring of any Obligations by the Company. As of the Closing
Date, neither the Company nor any Subsidiary is in default under or with respect
to any Contractual Obligation in any respect which, individually or together
with all such defaults, could reasonably be expected to have a Material Adverse
Effect, or that would, if such default had occurred after the Closing Date,
create an Event of Default under subsection 10.1(e).
7.7 ERISA Compliance. Except as specifically disclosed in
Schedule 7.7:
(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 Company, nothing has occurred which would cause the loss of such
qualification. The Company and each ERISA Affiliate has made all required
contributions 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 the
Company, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any 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 Unfunded Pension Liability;
(iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any 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 Company 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 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Company nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) or ERISA.
7.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by Section
8.12 and Section 9.7. Neither the Company nor any Subsidiary is generally
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.
53
61
7.9 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Closing Date, the
property of the Company and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
7.10 Taxes. The Company and its Subsidiaries have filed all federal
and other material tax returns and reports required to be filed, and have paid
all federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
7.11 Financial Condition. (a) (i) The audited consolidated financial
statements of the Company and its Subsidiaries dated December 27,1997 and the
related consolidated statements of income or operations, shareholders' equity
and cash flows for the fiscal year ended on that date and (ii) the unaudited
consolidated financial statements of the Company and its Subsidiaries dated
March 28,1998, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal quarter ended on that date:
(A) were prepared in accordance with
GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, subject
in the case of the March 28, 1998 statements to ordinary, good
faith year end audit adjustments;
(B) fairly present the financial
condition of the Company and its Subsidiaries as of the date
thereof and results of operations for the period covered
thereby; and
(C) except as specifically disclosed in
Schedule 7.11, show all material indebtedness and other
liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent
Obligations.
(b) (i) The audited financial statements of ProSource dated
December 27,1997 and the related consolidated statements of income or
operations, shareholders' equity and cash flows for the fiscal year ended on
that date and (ii) the unaudited financial statements of ProSource dated March
28, 1998, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal quarter ended on that date:
(A) were prepared in accordance with
GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein,
54
62
subject in the case of the March 28, 1998 statements to
ordinary, good faith year end audit adjustments;
(B) fairly present the financial
condition of ProSource as of the date thereof and results of
operations for the period covered thereby; and
(C) except as specifically disclosed in
Schedule 7.11, show all material indebtedness and other
liabilities, direct or contingent, of ProSource as of the date
thereof, including liabilities for taxes, material commitments
and Contingent Obligations.
(c) The pro forma consolidated closing balance sheet of the
Company and its Subsidiaries dated as of December 27, 1997 delivered to the
Lenders prior to the date hereof:
(i) after giving effect to the
ProSource Acquisition and the repayment of indebtedness described in
Section 6.2(d) and any transaction adjustments as provided in the
ProSource Acquisition Agreement or related to the ProSource
Acquisition, fairly presents the financial condition of the Company and
its Subsidiaries as of the date thereof; and
(ii) except as specifically disclosed in
Schedule 7.11, after giving effect to the ProSource Acquisition, the
repayment of indebtedness described in Section 6.2 (d), and any
transaction adjustments as provided in the ProSource Acquisition
Agreement or related to the ProSource Acquisition shows all material
indebtedness and other liabilities, direct or contingent, of the
Company and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Contingent
Obligations.
(d) The Initial Financial Projections delivered to the
Agents and the Lenders prior to the execution of this Agreement were prepared by
the Company in good faith and based upon historical financial information and
assumptions the Company deems reasonable and appropriate in light of current
circumstances.
(e) Since the dates of the financial statements referred to
in subsections (a) - (c) above, there has been no Material Adverse Effect.
7.12 Environmental Matters. The Company conducts in the ordinary
course of business a review of the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties, and as
a result thereof the Company has reasonably concluded that, except as
specifically disclosed in Schedule 7.12, such Environmental Laws and
Environmental Claims could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
55
63
7.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not 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 any other federal
or state statute or regulation limiting its ability to incur Indebtedness.
7.14 No Burdensome Restrictions. Neither the Company nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, which,
in the absence of a default thereunder, could reasonably be expected to have a
Material Adverse Effect.
7.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company
or its Subsidiaries own or are licensed or otherwise have the right to use all
of the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Company or any
Subsidiary infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 7.15, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Company, proposed, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
7.16 Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
7.16 hereto and has no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 7.16.
7.17 Insurance. Except as specifically disclosed in Schedule 7.17,
the properties of the Company and its Subsidiaries are insured with insurance
companies not Affiliates of the Company rated at least "A" by A.M. Best Company,
in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
7.18 Full Disclosure. None of the representations or warranties made
by the Company or any Subsidiary 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 Company or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on
behalf of the Company 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.
56
64
7.19 ProSource Acquisition Agreement. The representations and
warranties contained in the ProSource Acquisition Agreement (a true and correct
copy of which ProSource Acquisition Agreement, together with all schedules and
exhibits thereto, has been delivered to the Lenders), are true and correct in
all respects except where the failure to be so true and correct, upon
consummation of the ProSource Acquisition, could not reasonably be expected to
have a Material Adverse Effect. As of the date of the ProSource Acquisition, (i)
the Company shall have taken all necessary corporate actions to authorize the
ProSource Acquisition; and (ii) no representation made by the Company in any
notices or filings with the shareholders of the Company, with the SEC or any
applicable state securities commissions or with any governmental authority,
including, without limitation, any representations concerning any agreement
with, or financing provided by, the Lenders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order 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. Notwithstanding the foregoing, all representations made in this
Section 7.19 with respect to representations of the Seller, shall be made only
to the best of the Company's knowledge.
ARTICLE VIII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
8.1 Financial Statements. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders, with sufficient copies for each Lender:
(a) as soon as available and in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal
year of the Company, (i) consolidated balance sheet of the Company and
its Subsidiaries as of the end of such fiscal quarter, and (ii)
consolidated statement of earnings and cash flow of the Company and its
Subsidiaries for such fiscal quarter and for the period commencing at
the end of the previous fiscal year and ending with the end of such
fiscal quarter setting forth in each case a comparison of the results
with the corresponding fiscal quarter of the previous year, certified
by the chief financial officer of the Company; and
(b) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, a copy of the annual
audit report for such fiscal year for the Company and its Subsidiaries,
including therein consolidated balance sheet of the Company and its
Subsidiaries as of the end of such fiscal year and consolidated
statement of earnings and cash flow of the Company and its Subsidiaries
for such fiscal year, together with, in comparative form, the figures
for the previous fiscal year, certified (without any Impermissible
Qualification) in a manner reasonably acceptable to the Administrative
Agent and the Required Lenders by independent public accountants
reasonably acceptable to the Administrative Agent and the Required
Lenders (the "Independent Auditor"); and
57
65
(c) as soon as available and in any event by January 31 of
each year, for the three year period commencing on the first day of that Fiscal
Year, the following pro forma projected financial information, each certified as
true and correct by the president or chief financial officer of the Company to
the best of such officer's knowledge: (i) the Company's pro forma balance sheets
prepared in accordance with GAAP for the next three fiscal years, and (ii)
projected pro forma statements of earnings and cash flows and other operating
information for the Company which information presents fairly, on a pro forma
basis, the balance sheets of the Company and the Company's best good faith
estimate and projections of the Company's financial position and results of
operations as of the dates and for the periods indicated.
8.2 Certificates; Other Information. The Company shall furnish to
the Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 8.1 (b), a certificate of the Independent
Auditor stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in such
certificate or that the computation of compliance with the financial ratios and
restrictions contained in Sections 9.10 through 9.13, 9.17, 9.20 and 9.22
provided to the Lenders and the Administrative Agent does not fairly present the
information set forth therein;
(b) concurrently with the delivery of the financial
statements referred to in subsections 8.1(a) and (b), a Compliance Certificate
executed by a Responsible Officer;
(c) monthly within 20 days after each month a Borrowing
Base Certificate;
(d) annually, a schedule of insurance carried by the
Company and its Subsidiaries including the amounts of such insurance,
deductibles and risks covered;
(e) promptly, (i) if the Company has capital stock that is
publicly traded, copies of all financial statements and reports that the Company
sends to its shareholders, and (ii) copies of all financial statements and
regular, periodical or special reports (including Forms 10K, 1OQ and 8K) that
the Company or any Subsidiary may file with the SEC; and
(f) promptly upon receipt, copies of its accountants'
management letters; and
(g) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
58
66
8.3 Notices. The Company shall promptly notify the Administrative
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default,
and of the occurrence or existence of any event or circumstance that the Company
reasonably expects will become a Default or Event of Default;
(b) of any matter that has resulted or may result in a
Material Adverse Effect, including (i) breach or non-performance of, or any
default under, a Contractual Obligation of the Company or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension between the
Company or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary, including pursuant to any applicable
Environmental Laws;
(c) of the occurrence of any of the following events
affecting the Company or any ERISA Affiliate (but in no event more than 10 days
after such event), and deliver to the Administrative Agent and each Lender a
copy of any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Company or
any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded
Pension Liability of any Pension Plan;
(iii) the adoption of, or the commencement
of contributions to, any Plan subject to Section 412 of the Code by
the Company or any ERISA Affiliate;
(iv) the adoption of any amendment to a
Plan subject to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension Liability;
(d) of any material change in accounting policies or
financial reporting practices by the Company or any of its consolidated
Subsidiaries;
(e) of the occurrence of any material labor dispute;
(f) of the occurrence of an "Early Amortization Event,"
as defined in the Pooling and Servicing Agreement; or
(g) any event which will give rise to a prepayment pursuant
to Section 2.7(c).
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Company or any
affected Subsidiary proposes to take with respect thereto and at what time. Each
notice under subsection 8.3(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have been
(or foreseeably will be) breached or violated.
59
67
8.4 Preservation of Corporate Existence, etc. The Company shall,
and shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation except in connection with transactions permitted
by Section 9.3 and sales of assets permitted by Section 9.2;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 9.3 and sales of assets
permitted by Section 9.2;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation or non-renewal
of which could reasonably be expected to have a Material Adverse Effect.
8.5 Maintenance of Property. The Company shall maintain, and shall
cause each Subsidiary to maintain, and preserve all its property which is used
or useful in its business in good working order and condition, ordinary wear and
tear excepted, and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
8.6 Insurance. The Company shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons.
8.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
its respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become
a Lien upon its property; and
60
68
(c) all indebtedness, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
8.8 Compliance with Laws. The Company shall comply, and shall cause
each Subsidiary to 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), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
8.9 Compliance with ERISA. The Company 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; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
8.10 Inspection of Property and Books and Records. The Company shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives
and independent contractors of the Administrative Agent or any Lender at the
expense of the Administrative Agent or Lender, as the case may be, to visit and
inspect any of their respective properties, to examine their respective
corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts with
their respective directors, officers, and independent public accountants, all at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Company; provided,
however, when an Event of Default exists the Administrative Agent or any Lender
may do any of the foregoing at the expense of the Company at any time during
normal business hours and without advance notice, otherwise the expenses of only
one field audit by the Administrative Agent per year shall be paid by the
Company.
8.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws.
8.12 Use of Proceeds. The Company shall use the proceeds of the
Loans to repay existing Indebtedness, fund the ProSource Acquisition and pay
related fees and expenses and to provide for working capital, capital
expenditures and other general corporate purposes not in contravention of any
Requirement of Law or of any Loan Document.
8.13 Further Assurances. Promptly upon the written request of the
Administrative Agent, or the Required Lenders, the Company shall, and shall
cause each Subsidiary to, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register, any and all such further acts, deeds,
conveyances, security agreements, mortgages, assignments, estoppel certificates,
financing statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other instruments the
Administrative Agent or the
61
69
Required Lenders as the case may be, may reasonably request from time to time in
order (a) to ensure that (i) the Obligations are secured by substantially all
assets of the Company and (ii) the Obligations are secured by substantially all
of the assets of each Subsidiary (including, promptly upon the acquisition or
creation thereof, any Subsidiary created or acquired after the date hereof), (b)
to perfect and maintain the validity, effectiveness and priority of any of the
Loan Documents and the Liens intended to be created thereby, and (c) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Administrative Agent and the Lenders the rights granted or now or hereafter
intended to be granted to the Administrative Agent and the Lenders under any
Loan Documents or under any other document executed in connection therewith.
Contemporaneously with the execution and delivery of any document referred to
above, the Company shall, and shall cause each Subsidiary to, deliver all
resolutions, opinions and corporate documents as the Administrative Agent or the
Required Lenders may reasonably request to confirm the enforceability of such
document and the perfection of the security interest created thereby, if
applicable.
8.14 INTENTIONALLY LEFT BLANK
8.15 Post-Closing Real Estate Matters. Within 90 days after the date
hereof (or, in the case of owned or leased properties acquired after the date
hereof, within 90 days following such acquisition) the Company shall deliver to
the Administrative Agent the following:
(a) consents from the Landlord of each leased property to
be subject to a Mortgage in form and substance reasonably satisfactory to the
Administrative Agent;
(b) the Mortgages;
(c) UCC financing statements related to the Mortgages;
(d) with respect to the Mortgaged Property, an A.L.T.A.
1992 (or other form acceptable to the Administrative Agent and the Supermajority
Lenders) mortgagee policy of title insurance issued by a title insurance company
satisfactory to the Administrative Agent insuring that the Mortgage creates and
constitutes a valid first Lien against the Mortgaged Property in favor of the
Administrative Agent, subject only to exceptions acceptable to the
Administrative Agent, such endorsements and affirmative insurance as the
Administrative Agent may reasonably request;
(e) copies of all documents creating exceptions to title
reflected in the title policies delivered pursuant to (d) above;
(f) to the extent required by the Administrative Agent,
opinions of local counsel in form and substance satisfactory to the
Administrative Agent; and
(g) amendments to existing Mortgages and date-down
endorsements to existing title policies to the extent reasonably required by the
Administrative Agent.
62
70
The Lenders and the Company hereby acknowledge and agree that (a) the Company
has previously granted to the Administrative Agent (and has obtained landlord
consents for) leasehold mortgages on certain of the distribution centers leased
by the Company prior to the date hereof (such leased distribution centers, other
than such centers of ProSource and its Subsidiaries, being collectively referred
to herein as the "Existing Distribution Centers"); and (b) the obligations of
the Company under this Section 8.15 shall be applicable only to the owned and
leased real property acquired by the Company after the date hereof and leased
property related to the distribution centers in Orlando, Florida and Denver,
Colorado, and the Company has no obligation to grant to Administrative Agent any
additional leasehold mortgages with respect to other Existing Distribution
Centers or ProSource distribution centers leased on the date hereof (other than
with respect to the national accounts division of ProSource). The Company's
obligations under this Section with respect to leased properties of the national
accounts division of ProSource shall be limited to commercially reasonable
efforts and the Company shall have no obligations with respect to other leased
property of ProSource as of the date hereof.
ARTICLE IX
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
9.1 Limitation on Liens. The Company shall not, and shall not
suffer or permit any Subsidiary to, directly or indirectly, make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its
property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Closing Date and set forth in Schedule 9.1 securing
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document and any Lien
in favor of a Lender or its Affiliates and securing the Hedging Agreements;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without penalty,
or to the extent that non-payment thereof is permitted by Section 8.7; provided
that no notice of lien has been filed or recorded under the Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary course
of business which are not delinquent or remain payable without penalty or which
are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property
subject thereto;
63
71
(e) Liens (other than any Lien imposed by ERISA) consisting
of pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of the Company or its Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, (ii) contingent obligations
on surety and appeal bonds, and (iii) other non-delinquent obligations of a like
nature; in each case, incurred in the ordinary course of business;
(g) Liens consisting of judgment or judicial attachment
liens, provided that the enforcement of such Liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Subsidiaries;
(i) Liens on assets of corporations which become
Subsidiaries after the date of this Agreement; provided, however, (i) that such
Liens existed at the time the respective corporations became Subsidiaries and
were not created in anticipation thereof and (ii) the principal amount of the
Indebtedness secured by any and all such Liens shall not at any time exceed
$4,000,000;
(j) purchase money security interests on any property
acquired or held by the Company or its Subsidiaries in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of financing
all or any part of the cost of acquiring such property; provided that (i) any
such Lien attaches to such property concurrently with or within 20 days after
the acquisition thereof, (ii) such Lien attaches solely to the property so
acquired in such transaction, (iii) the principal amount of the debt secured
thereby does not exceed 100% of the cost of such property and (iv) the principal
amount of the Indebtedness secured by any and all such purchase money security
interests shall not at any time exceed $5,000,000;
(k) Liens securing obligations in respect of capital leases
on assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
(l) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
(m) other Liens to secure obligations, so long as the
aggregate amount secured by such Liens does not exceed $5,000,000 at any time;
64
72
(n) Liens on Receivables Program Assets; and
(o) Liens on assets of foreign Subsidiaries securing
Indebtedness not in excess of $10,000,000 at any time outstanding.
9.2 Asset Dispositions, etc. The Company will not, and will not
permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
all or any substantial part of its assets (including accounts receivable and
capital stock of Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its business or is permitted by Section
9.3;
(b) such sale, transfer, lease, contribution or conveyance
is a disposition of real estate or warehouses owned or leased on the date hereof
made within two years after the date hereof in connection with the Company's
warehouse consolidation plan;
(c) with respect to any real estate or warehouses purchased
after the date hereof, such sale is pursuant to a sale-leaseback arrangement so
long as a leasehold mortgage is granted with respect thereto in form
satisfactory to the Administrative Agent;
(d) with respect to any sale, transfer, lease, contribution
or conveyance which is not made in connection with the acquisition of assets by
the Company, the net book value of such assets, together with the net book value
of all other assets sold, transferred, leased, contributed or conveyed otherwise
than in the ordinary course of business by the Company or any of its
Subsidiaries pursuant to this clause since the Closing Date, does not exceed
$10,000,000;
(e) with respect to any sale, transfer, lease, contribution
or conveyance (other than any sale, transfer, lease, contribution or conveyance
of assets of the ProSource national accounts division) which is made in
connection with the acquisition of assets by the Company, the net book value of
such assets does not exceed the net book value of the assets acquired by the
Company in connection with any such acquisition;
(f) such sale, transfer, lease, contribution or conveyance
is of obsolete or unuseful Equipment and the aggregate proceeds of all such
sales, transfers, leases, contributions or conveyance of such Equipment is
$5,000,000 or less in any fiscal year;
(g) such sale, transfer, lease, contribution or conveyance
shall be of Receivables Program Assets pursuant to a Qualified Receivables
Transaction to a Receivables Subsidiary; or
(h) such sale, transfer, lease, contribution or conveyance
shall be of Receivables Program Assets pursuant to a Qualified Receivables
Transaction by a Receivables Subsidiary to a Special Purpose Vehicle.
65
73
9.3 Consolidations and Mergers. The Company shall not, and shall
not suffer or permit any Subsidiary to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary may merge with the Company, provided
that the Company shall be the continuing or surviving corporation, or with any
one or more Subsidiaries; provided that if any transaction shall be between a
Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
the continuing or surviving corporation and if any transaction shall be between
a Guarantor and a Subsidiary which is not a Guarantor, the Guarantor shall be
the continuing or surviving corporation;
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Company or another
Wholly-Owned Subsidiary, which wholly-owned Subsidiary is a Guarantor if the
selling Subsidiary is a Guarantor;
(c) so long as no Default has occurred and is continuing,
or would occur after giving effect thereto, the Company or any of its
Subsidiaries may purchase all or substantially all of the assets of any Person,
or acquire such Person by merger, if such acquisition is approved by the
Administrative Agent and Required Lenders;
(d) as permitted by Section 9.2; or
(e) as permitted by Section 9.4(g).
9.4 Loans and Investments. The Company shall not purchase or
acquire, or suffer or permit any Subsidiary to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, or any obligations or
other securities of, or any interest in, any Person, or make or commit to make
any Acquisitions, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in, any Person
including any Affiliate of the Company, except for:
(a) investments in Cash Equivalents Investments;
(b) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business;
(c) in the ordinary course of business extensions of
credit by the Company to any of its Subsidiaries or by any of its Subsidiaries
to another of its Subsidiaries;
(d) until such time as a Default shall have occurred and be
continuing, loans and advances to Xxxxxxx made on or after the Closing Date not
to exceed $10,000,000 at any time outstanding; provided that upon the occurrence
of such a Default, any outstanding loans and advances permitted by this clause
(d) must be immediately repaid in full;
66
74
(e) investments in a Receivables Subsidiary, consisting
of Receivables Program Assets and Purchase Money Notes in payment for
Receivables Program Assets;
(f) investments by a Receivables Subsidiary in a Special
Purpose Vehicle;
(g) (i) Acquisitions (other than those permitted under
Section 9.3(c)) and investments in amounts (including cash paid and Indebtedness
assumed or refinanced) not in excess of $25,000,000 (or after June 30, 2001,
$50,000,000) for any single acquisition or series of related acquisitions and
not in excess of (A) $25,000,000 in the aggregate from the Closing Date through
June 30, 1999, (B) $25,000,000 (plus any amount permitted to be expended
pursuant to clause (A) but not so expended) in the aggregate from July 1, 1999
through June 30, 2000 and (C) $25,000,000 (plus any amount permitted to be
expended pursuant to clause (B) but not any such amount carried forward from
clause (A)) in the aggregate from July 1, 2000 through June 30, 2001, but not in
excess of $60,000,000 for all such Acquisitions through June 30, 2001 or
$100,000,000 for all such Acquisitions after the date hereof, so long as, in the
case of an Acquisition, (A) the entity acquired had a positive operating income
for the 12 months prior to the Acquisition, (B) the entity acquired engaged only
in lines of business in which the Company is engaged, (C) in the case of a stock
Acquisition, the Acquisition is approved by the Board of Directors of the
acquired entity, and (D) giving effect to the Acquisition (x) the Company would
have been in compliance with all covenants hereof as if such Acquisition took
place on the first day of the fiscal quarter period ending at the end of the
last fiscal quarter as demonstrated by a certificate of a Responsible Officer
delivered prior to such Acquisition and (y) at least $50,000,000 of the
Commitments remain unused (it being understood that the principal amount of
Loans and the outstanding L/C Obligations shall be deemed usage), and (ii)
existing investments listed on Schedule 9.4; and
(h) loans and advances to employees not to exceed
$5,000,000 at any time outstanding.
9.5 Limitation on Indebtedness. The Company shall not, and shall
not suffer or permit any Subsidiary to, create, incur, assume, suffer to exist,
or otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness, other than the following ("Permitted Indebtedness"):
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 9.8;
(c) Indebtedness existing on the Closing Date and set
forth in Schedule 9.5;
(d) Indebtedness secured by Liens permitted by subsection
9.1(j) in an aggregate amount outstanding not to exceed $5,000,000.
(e) Subordinated Debt;
67
75
(f) Indebtedness with respect to any assets acquired by the
Company or any of its Subsidiaries (or assets owned by Subsidiaries the stock of
which is acquired by the Company or any of its Subsidiaries) in existence at the
time of the acquisition of such assets or stock, which Indebtedness was not
incurred in contemplation of the acquisition; provided that such Indebtedness
does not in an aggregate amount outstanding exceed $5,000,000;
(g) Capitalized Lease Obligations not in excess of
$50,000,000 created in any one fiscal year and not in excess of $100,000,000 at
any time outstanding;
(h) Other notes payable to vendors not in excess of
$5,000,000 at any time outstanding;
(i) the Senior Subordinated Notes;
(j) Indebtedness of foreign Subsidiaries not in excess of
$10,000,000 at any time outstanding;
(k) Other Indebtedness not in excess of $5,000,000 at any
time outstanding;
(l) Receivables Program Obligations, pursuant to a
Qualified Receivables Transaction; and
(m) the Senior Unsecured Notes.
9.6 Transactions with Affiliates. The Company will not, and will
not permit any of its Subsidiaries to, enter into, or cause, suffer or permit to
exist any arrangement or contract with any of its other Affiliates (a) unless
such arrangement or contract is fair and equitable to the Company or such
Subsidiary and is an arrangement or contract of the kind which would be entered
into by a prudent Person in the position of the Company or such Subsidiary with
a Person which is not one of its Affiliates, it being understood that any
Qualified Receivables Transaction shall be deemed to satisfy this clause (a);
(b) except (i) the arrangement between Xxxxxxx and the Company under the Tax
Sharing Agreement, and (ii) the insurance arrangement between NEHC and its
Subsidiaries and an affiliate of Xxxxxxx, the fees with respect to which shall
not exceed the usual and customary fees for such services; (c) except
arrangements or contracts which provide for investments in Affiliates of the
Company or any of its Subsidiaries to the extent such investments are permitted
pursuant to Section 9.4 provided, however, that unless an Event of Default shall
have occurred and be continuing, Corporate Allocations permitted under Section
9.11 can be paid; (d) transactions between the Company or its Subsidiaries on
the one hand and DLJ or its Affiliates on the other hand involving the provision
of financial, investment banking, lending, management, consulting or
underwriting services by DLJ or its Affiliates; provided that the fees payable
to DLJ or its Affiliates do not exceed the usual and customary fees of DLJ or
its Affiliates, as the case may be, for such services or the usual and customary
fees of other New York investment banking firms for such services; or (e)
transactions between the Company and Xxxxxxx involving the provision of
financial, management or consulting services provided that (i) the fees payable
by the Company for such services do not exceed the usual and customary fees
68
76
for such services (it being agreed that a payment of $3,250,000 with respect to
the ProSource Acquisition and related transactions is permitted) and (ii) the
payment of any such fees shall be subject to the consent of the Administrative
Agent or, if in excess of $2,000,000 in any fiscal year, the Required Lenders.
9.7 Use of Proceeds. Other than on the Closing Date in connection
with the ProSource Acquisition, the Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to
repay or otherwise refinance indebtedness of the Company 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.
9.8 Contingent Obligations. The Company shall not, and shall not
suffer or permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Hedging Agreements entered into in the ordinary course
of business as bona fide hedging transactions;
(c) Contingent Obligations of the Company and its
Subsidiaries existing as of the Closing Date and listed in Schedule 9.8;
(d) other Contingent Obligations so long as the aggregate
amount of such Contingent Obligations outstanding at any one time does not
exceed $3,000,000;
(e) Receivables Program Obligations; and
(f) guarantees of the Obligations, the Senior Subordinated
Notes and the Senior Unsecured Notes.
9.9 Joint Ventures. The Company shall not, and shall not suffer or
permit any Subsidiary to enter into any Joint Venture, other than in the
ordinary course of business and other than as permitted by Section 9.4(g).
9.10 Rental Obligations. The Company will not, and will not permit
any of its Subsidiaries to, enter into at any time any arrangement which does
not create a Capitalized Lease Liability and which involves the leasing by the
Company or any of its Subsidiaries from any lessor of any real or personal
property (or any interest therein), except arrangements which, together with all
other such arrangements which shall then be in effect, will not require the
payment of an aggregate amount of rentals by the Company and its Subsidiaries in
excess of (excluding escalations resulting from a rise in the consumer price or
similar index) $67,500,000 for any fiscal year; provided, however, that any
calculation made for purposes of this section shall exclude any amounts required
to be expended for maintenance and repairs, insurance, taxes, assessments, and
other similar charges.
69
77
9.11 Restricted Payments. On and at all times after the Closing
Date:
(a) the Company will not declare, pay or make any dividend
or distribution (in cash, property or obligations) on any shares of any
class of capital stock (now or hereafter outstanding) of the Company or
on any warrants, options or other rights with respect to any shares of
any class of capital stock (now or hereafter outstanding) of the
Company (other than dividends or distributions payable in its common
stock or warrants to purchase its common stock or splitups or
reclassifications of its stock into additional or other shares of its
common stock) or apply, or permit any of its Subsidiaries to apply, any
of its funds, property or assets to the purchase, redemption, sinking
fund or other retirement of, or agree or permit any of its Subsidiaries
to purchase or redeem, any shares of any class of capital stock (now or
hereafter outstanding) of the Company, or warrants, options or other
rights with respect to any shares of any class of capital stock (now or
hereafter outstanding) of the Company;
(b) the Company will not, and will not permit any of its
Subsidiaries to
(i) make any payment or prepayment of principal
of, or make any payment of interest on, any Subordinated Debt, the
Senior Subordinated Notes, or the Senior Unsecured Notes on any day
other than the stated, scheduled date for such payment or prepayment
set forth in the documents and instruments memorializing such
Subordinated Debt, the Senior Subordinated Notes, or the Senior
Unsecured Notes, or which would violate the subordination provisions of
such Subordinated Debt or the Senior Subordinated Notes; or
(ii) redeem, purchase or defease any Subordinated
Debt, Senior Unsecured Notes or the Senior Subordinated Notes;
(c) except as otherwise permitted under this Section 9.11,
the Company will not make any payment to NEHC or Xxxxxxx, including without
limitation, in respect of Corporate Allocations and will not make any payment
with respect to annual management fees; and
(d) the Company will not, and will not permit any
Subsidiary to, make any deposit for any of the foregoing purposes;
provided, however, that, unless immediately before or after giving effect
thereto, any Event of Default shall have occurred and be continuing, the Company
may declare, pay or make payments in respect of
(i) Corporate Allocations during any fiscal year
of the Company in an aggregate amount not to exceed $5,000,000 in any
fiscal year;
70
78
(ii) Payments with respect to the insurance
arrangements permitted pursuant to Section 9.6(b)(ii);
(iii) Payments permitted pursuant to Section
9.6(e);
(iv) Payments under the Tax Sharing Agreement; and
(v) commencing after January 11, 2003, payments
of dividends in amounts not greater than interest payable by NEHC on
its $100,387,000 12?% Senior Discount Notes so long as (A) the Company
would be in pro forma compliance with all covenants hereunder, as if
such dividends were paid on the last day of the last fiscal quarter
ended before such proposed payment and (B) the proceeds of the
dividends shall be applied to such interest on such Senior Discount
Notes.
9.12 Minimum Interest Coverage. The Company will not permit the
Interest Coverage Ratio for any Computation Period to be less than the ratio set
forth below opposite the period in which such Computation Period ends:
Period Ratio
------ -----
End of the third fiscal quarter of 1998 through the
next to last day of the second fiscal quarter of 2000 1.25 to 1.0
The last day of the second fiscal quarter of 2000 through
the next to last day of the second fiscal quarter of 2001 1.35 to 1.0
The last day of the second fiscal quarter of 2001 through
the next to last day of the second fiscal quarter of 2002 1.50 to 1.0
The last day of the second fiscal quarter 2002 and
thereafter 1.75 to 1.0
9.13 Maximum Leverage. The Company will not permit the Leverage Ratio
at any fiscal quarter end to exceed the following ratios during the following
periods:
Period Ratio
------ -----
The last day of the second fiscal quarter of 1998 through
the next to last day of the second fiscal quarter of 2000 3.75 to 1.0
The last day of the second fiscal quarter of 2000 through
the next to last day of the second fiscal quarter of 2001 3.50 to 1.0
The last day of the second fiscal quarter of 2001 through
the next to last day of the second fiscal quarter of 2002 3.25 to 1.0
The last day of the second fiscal quarter of 2002 and
thereafter 3.00 to 1.0
9.14 ERISA. The Company shall not, and shall not suffer or permit any
of its ERISA Affiliates to: (a) engage in a 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
71
79
liability of the Company in an aggregate amount in excess of $5,000,000 or (b)
engage in a transaction that could be subject to Section 4069 or 4212(c) of
ERISA.
9.15 Modification of Certain Agreements. The Company will not
consent to any amendment, supplement or other modification of any of the terms
or provisions contained in, or applicable to, the Tax Sharing Agreement or any
document or instrument evidencing or applicable to any Subordinated Debt, the
Senior Subordinated Notes or the Senior Unsecured Notes other than any
amendment, supplement or other modification which extends the date or reduces
the amount of any required repayment or redemption.
9.16 Negative Pledges, Restrictive Agreements, etc. The Company will
not, and will not permit any of its Subsidiaries to, enter into any agreement
(excluding this Agreement, any other Loan Document and any agreement governing
any Indebtedness permitted either by clause (c), clause (i) or clause (m) of
Section 9.5 as in effect on the Closing Date or by either of clause (d) or
clause (f) of Section 9.5 as to the assets financed with the proceeds of such
Indebtedness) prohibiting
(a) the creation or assumption of any Lien upon its
properties, revenues or assets (other than Receivables Program Assets), whether
now owned or hereafter acquired, or the ability of the Company or any Subsidiary
to amend or otherwise modify this Agreement or any other Loan Document; or
(b) the ability of any Subsidiary (other than a Receivables
Subsidiary) to make any payments, directly or indirectly, to the Company by way
of dividends, advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or other
returns on investments, or any other agreement or arrangement which restricts
the ability of any Subsidiary (other than a Receivables Subsidiary) to make any
payment, directly or indirectly, to the Company.
9.17 Maximum Capital Expenditures. The Company will not permit the
aggregate amount of all Capital Expenditures made by the Company and its
Subsidiaries to exceed $75,000,000 in the period from the Closing Date through
December 31, 1998, $50,000,000 in fiscal year 1999 and $40,000,000 in any fiscal
year thereafter; provided; that the amounts so permitted in any year shall be
reduced by expenses associated with the X.X. Xxxxxxx computer conversion added
to Adjusted EBITDA pursuant to clause (f) of the definition of "Adjusted
EBITDA"; provided, further that in addition to the foregoing Capital
Expenditures, the Company and its Subsidiaries may make Capital Expenditures
aggregating from the date hereof not in excess of $25,000,000 in connection with
real estate and warehouse construction projects (net of proceeds of sales of
such projects with respect to which all Capital Expenditures were made after the
date hereof); and provided, further, that if the Company and its Subsidiaries do
not expend the full amount scheduled to be permitted in any period, the amount
not so expended may be carried over for expenditures in the next fiscal year but
not after such next fiscal year.
72
80
9.18 Change in Business. The Company shall not, and shall not suffer
or permit any Subsidiary to, engage in any material line of business
substantially different from those lines of business carried on by the Company
and its Subsidiaries on the date hereof.
9.19 Accounting Changes. The Company shall not, and shall not suffer
or permit any Subsidiary to, make any significant change in accounting treatment
or reporting practices, except as required by GAAP, or change the fiscal year of
the Company or of any Subsidiary.
9.20 Restructuring Costs. The Company shall not, and shall not
suffer or permit any Subsidiary to, incur Restructuring Costs in excess of the
following amounts in the following periods:
Period Amount
------ ------
Closing through the end of fiscal year 1998 $65,000,000
Fiscal year 1999 $55,000,000
Fiscal year 2000 $50,000,000
Fiscal Year 2001 $10,000,000
Each fiscal year thereafter $ 5,000,000
provided, however, that if the Company and its Subsidiaries do not incur the
full amount of restructuring costs scheduled to be permitted in any such period,
the amount not so incurred may be carried over for incurrence in the next period
but not after such next period.
9.21 Receivables Facility. The Company and its Subsidiaries shall
not amend or modify, or permit the amendment or modification of, any provision
of a Receivables Document if, as a result of such amendment or modification:
(a) a Receivables Subsidiary would not be required to apply
all funds available to it (after giving effect to the allocation of
funds to reserves required under the terms of the Receivables Documents
and to the payment of interest, principal and other amounts owed under
the Receivables Documents) to pay the purchase price for Receivables
(including any deferred portion of the purchase price); or
(b) the degree of recourse to the Company or its
Subsidiaries under or in the respect of the Receivables Documents is
increased in any material respect.
Notwithstanding anything to the contrary contained in this Section, any
changes to the Receivables Documents which relate to the Company's and/or any
other Receivables Seller's servicing or origination of Receivables Program
Assets shall be permitted.
9.22 Marketing Costs. The Company and its Subsidiaries shall not
incur between the date hereof and December 31, 1998 Marketing Costs in excess of
$30,000,000 for AmeriServe and its Subsidiaries (other than ProSource and its
Subsidiaries) or $25,000,000 for ProSource and its Subsidiaries.
73
81
ARTICLE X
EVENTS OF DEFAULT
10.1 Event of Default. Any of the following shall constitute an
"Event of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of any L/C
Obligation or (ii) within 5 days after the same becomes due, any interest, fee
or any other amount payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation or
warranty by the Company, NEHC, or any Subsidiary made or deemed made herein, in
any other Loan Document, or which is contained in any certificate, document or
financial or other statement by the Company, NEHC, any Subsidiary or any
Responsible Officer, furnished at any time under this Agreement, or in or under
any other Loan Document, is incorrect in any material respect on or as of the
date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or
observe any term, covenant or agreement contained in any of Section 8.1, 8.2,
8.3 or 8.9 or in Article IX; or
(d) Other Defaults. The Company, any Subsidiary party
thereto or NEHC fails to perform or observe any other term or covenant contained
in this Agreement or any other Loan Document, and such default shall continue
unremedied for a period of 20 days after the date upon which written notice
thereof is given to the Company by the Administrative Agent or any Lender; or
(e) Cross-Default. NEHC, the Company or any Subsidiary
(other than a Receivables Subsidiary) (i) fails to make any payment (including
any mandatory prepayment or redemption) in respect of any Indebtedness or
Contingent Obligation having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $5,000,000
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of such
failure; or (ii) fails to perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation, and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure if the effect of such
failure, event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Contingent Obligation to become payable or
cash collateral in respect thereof to be demanded or; or
74
82
(f) Insolvency; Voluntary Proceedings. The Company, NEHC or
any Subsidiary other than a Receivables Subsidiary (i) ceases or fails to be
solvent, or generally fails to pay, or admits in writing its inability to pay,
its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or authorize any of
the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company, NEHC or any Subsidiary
other than a Receivables Subsidiary, or any writ, judgment, warrant of
attachment, execution or similar process, is issued or levied against a
substantial part of the Company's, NEHC's or any Subsidiary's properties, and
any such proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded within 60 days after commencement, filing or levy; (ii)
the Company, NEHC or any Subsidiary other than a Receivables Subsidiary admits
the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) the Company, NEHC or any Subsidiary other than a
Receivables Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably be
expected to result in liability of the Company under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$5,000,000 unless the ERISA Event is a contribution failure sufficient to give
rise to a Lien under Section 302(f) of ERISA in which case the dollar liability
threshold does not apply; the aggregate amount of Unfunded Pension Liability
among all Pension Plans at any time exceeds $5,000,000; or (iii) the Company 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 Multiemployer Plan in an aggregate
amount in excess of $5,000,000; or
(i) Monetary Judgments. One or more non-interlocutory
judgments, non- interlocutory orders, decrees or arbitration awards is entered
against the Company, NEHC or any Subsidiary other than a Receivables Subsidiary
involving in the aggregate a 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 series of transactions, incidents or conditions, of
$2,000,000 or more, and the same shall remain unsatisfied, unvacated and
unstayed pending appeal for a period of 10 days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment,
order or decree is entered against the Company, NEHC or any Subsidiary which
does or would reasonably be expected to have a Material Adverse Effect, and
there shall be any period of 10 consecutive days
75
83
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(k) Change of Control. There occurs any Change of Control
or any "Change of Control" or like event as defined in any other indenture or
other agreement or instrument pursuant to which Indebtedness or equity is issued
or Receivables are sold by NEHC, the Company or any Subsidiary; or
(l) Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of the Company, NEHC or any Subsidiary party
thereto; the Company, NEHC, or any Subsidiary shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or any Lien securing any Liability shall, in whole or in part,
cease to be a perfected first priority Lien; provided, however, no Event of
Default hereunder shall exist to the extent (A) the failure of such Lien to
remain effective is due solely to the negligence of the Agent or the Lenders or
(B) the failure to maintain perfection of such Lien is due solely to the failure
of the Agent to file appropriate Uniform Commercial Code continuation
statements; or
(m) NEHC. NEHC shall guarantee any Indebtedness of any
Affiliate, other than the Company and the Subsidiaries of the Company.
10.2 Remedies. If any Event of Default occurs, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders,
(a) declare the commitment of each Lender to make Loans and
any obligation of the Issuing Lender to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, and declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents or
applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 10.1 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans and any obligation of the Issuing Lender to Issue Letters
of Credit shall automatically terminate and the unpaid principal
76
84
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable without further act of the
Administrative Agent, the Issuing Lender or any Lender.
10.3 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE XI
THE AGENTS
11.1 Appointment and Authorization. (a) Each Lender hereby
irrevocably (subject to Section 11.9) appoints, designates and authorizes the
Administrative 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. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative 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
Administrative Agent.
(b) The Issuing Lender shall act on behalf of the Lenders
with respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for such Issuing Lender with
respect thereto; provided, however, that the Issuing Lender shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this
Article XI with respect to any acts taken or omissions suffered by the Issuing
Lender in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the application and agreements for letters of credit pertaining
to the Letters of Credit as fully as if the term "Administrative Agent," as used
in this Article XI, included the Issuing Lender with respect to such acts or
omissions and (ii) as additionally provided in this Agreement with respect to
the Issuing Lender.
11.2 Delegation of Duties. The Administrative 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 Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
11.3 Liability of Administrative 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
77
85
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 Company or any Subsidiary or Affiliate of the Company, 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 the Company 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 Company or any of the Company's Subsidiaries or
Affiliates.
11.4 Reliance by Administrative Agent. (a) The Administrative 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 Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative 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 Required 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 Administrative 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 Required Lenders (or the Supermajority Lenders or all Lenders as
required herein) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Section 6.1, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender unless such Lender has provided written notice to the
Agent of its lack of consent, approval or satisfaction.
11.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from
a Lender or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default." The
Administrative Agent
78
86
will promptly notify the Lenders of its receipt of any such notice. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Required Lenders in accordance with
Article X; provided, however, that unless and until the Administrative Agent has
received any such request, the Administrative 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 or in the best
interest of the Lenders.
11.6 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 Administrative Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Administrative 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 Company and its Subsidiaries, 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 Company hereunder. 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 Company. Except for notices, reports and other documents
expressly herein required to be furnished to the Lenders by the Administrative
Agent, the Administrative 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 Company which may come into the possession of any of the
Agent-Related Persons.
11.7 Indemnification of Administrative Agent. 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 Company and without limiting the obligation of the Company to do
so), pro rata, from and against any and all Indemnified Obligations; provided,
however, that no Lender shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Obligations resulting solely from
such Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative 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 Administrative Agent is not reimbursed for such expenses by or
on behalf of the Company. The undertaking in this
79
87
Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
11.8 Administrative Agent in Individual Capacity. B of A 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
Company and its Subsidiaries and Affiliates as though B of A were not the
Administrative Agent or B of A were not the Issuing Lender hereunder and without
notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to
such activities, B of A or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, B of A shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent or the Issuing
Lender.
11.9 Successor Agent. The Administrative Agent may, and at
the request of the Required Lenders shall, resign as Administrative Agent upon
30 days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders. If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Lenders and the Company, 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 Administrative Agent and the term
"Administrative Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article XI and Sections 12.4 and
12.5 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. Notwithstanding the foregoing, however, B
of A may not be removed as the Administrative Agent at the request of the
Required Lenders unless B of A shall also simultaneously be replaced as "Issuing
Lender" hereunder pursuant to documentation in form and substance reasonably
satisfactory to B of A.
11.10 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 or if any Lender claims exemption from
withholding tax pursuant to Section 871(h) or 881(c) of the Code, such Lender
agrees with and in favor of the Administrative Agent, to deliver to the
Administrative Agent:
80
88
(i) if such Lender claims an exemption
from, or a reduction of, withholding tax under a United States tax
treaty, properly completed IRS Form 1001 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 withholding tax
because it is effectively connected with a United States trade or
business of such Lender, two properly completed and executed copies of
IRS Form 4224 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;
(iii) in the case of any Lender that is
exempt from withholding tax pursuant to Section 881(h) or 881(c) of the
Code, properly completed IRS Form W-8 or any applicable successor form
before the payment of any interest is due; and
(iv) such other form or forms as may be
required under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States withholding
tax.
Such Lender agrees to promptly notify the Administrative 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 tax treaty by providing IRS Form 1001 and
such Lender sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company to such Lender, such Lender agrees
to notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Company to such Lender. To the
extent of such percentage amount, the Administrative Agent will treat such
Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Company 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 Administrative 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 Administrative Agent, then the Administrative 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.
81
89
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Administrative
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 Administrative 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 Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Administrative 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 Administrative Agent.
11.11 Collateral Matters.
(a) The Administrative Agent is authorized on behalf of all
the Lenders; without the necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to any Collateral or
the Loan Documents which may be necessary to perfect and maintain perfected tile
security interest in and Liens upon the Collateral granted pursuant to the Loan
Documents.
(b) The Lenders irrevocably authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted to or
held by the Administrative Agent upon any Collateral (i) upon termination of the
Commitments and payment m full of all Loans and all other obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any disposition permitted hereunder; (iii) constituting
property in which the Company or any Subsidiary owned no interest at the time
the Lien was granted or at any time thereafter; (iv) constituting property
leased to the Company or any Subsidiary under a lease which has expired or been
terminated in a transaction permitted under this Agreement or is about to expire
and which has not been, and is not intended by the Company or such Subsidiary to
be, renewed or extended; (v) consisting of an instrument evidencing Indebtedness
or other debt instrument, if the indebtedness thereby has been paid in full; or
(vi) if approved, authorized or ratified in writing by the Required Lenders or,
if required by Section 12.1(e), all the Lenders. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this subsection 11.11(b).
11.12 Documentation Agent. No Lender identified as a
"Documentation 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 "Documentation Agent" shall have or be deemed to have any
fiduciary responsibility with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on
82
90
any of the Lenders so identified and decided to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE XII
MISCELLANEOUS
12.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement, any other Loan Document or the Intercreditor
Agreement, and no consent with respect to any departure by the Company, NEHC or
any applicable Subsidiary therefrom, shall be effective unless the same shall be
in writing and signed by the Required Lenders (or by the Administrative Agent at
the written request of the Required Lenders) and the Company and acknowledged by
the Administrative Agent, 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 all the Lenders and the Company and acknowledged by the
Administrative Agent, do any of the following:
(a) increase or extend the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 10.2);
(b) reduce the amount of, postpone or delay any date fixed
by this Agreement or any other Loan Document for any payment or prepayment of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document or amend the application of payments
with respect thereto;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (ii) below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Lenders
or any of them to take any action hereunder;
(e) release all or any substantial part of the Collateral
or release any Guarantor;
(f) extend any Letter of Credit expiration date to a date
beyond the Revolving Termination Date; or
(g) amend this Section, or Section 2.14, or any provision
herein providing for consent or other action by all Lenders;
and, provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Lender in addition to the Required Lenders or
all the Lenders, as the case may be, affect the rights or duties of the Issuing
Lender under this Agreement or any L/C-Related Document relating to any Letter
of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
83
91
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Required Lenders or all the Lenders, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document, and (iii) the Fee Letters may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto and;
provided, further, that, at the Company's request, the Administrative Agent
shall, without the consent of any Lender, release the security interest of the
Administrative Agent and the Lenders in any property subject to Capitalized
Lease Obligations permitted under Section 9.5(g).
12.2 Notices. (a) All notices, requests and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, provided that any matter
transmitted by the Company by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on Schedule 12.2 and
(ii) shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered to the address or facsimile number specified for
notices on Schedule 12.2; or, as directed to the Company or the Administrative
Agent, to such other address as shall be designated by such party in a written
notice to the other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice to the Company
and the Administrative Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II, III or XI shall not be effective until actually
received by the Administrative Agent, and notices to the Issuing Lender pursuant
to Article III shall not be effective until actually received by the Issuing
Lender at the address specified for the Issuing Lender on Schedule 12.2.
(c) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of the Company. The Administrative Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice and the
Administrative Agent and the Lenders shall not have any liability to the Company
or other Person on account of any action taken or not taken by the
Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any failure by
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any
84
92
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
12.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse B of A (including in its capacity as
Administrative Agent and Issuing Lender) and DLJ (including in its capacity as
Documentation Agent) within five Business Days after demand for all costs and
expenses incurred by B of A (including in its capacity as Administrative Agent
and Issuing Lender) and DLJ (including in its capacity as Documentation Agent)
in connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any Loan Document and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by B of A (including in its capacity as
Administrative Agent and Issuing Lender) and DLJ (including in its capacity as
Documentation Agent) with respect thereto; and
(b) pay or reimburse the Administrative Agent, the Arranger
and each Lender within five Business Days after demand for all costs and
expenses (including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document during the existence of an Event
of Default or after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
12.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify and hold the
Agent-Related Persons, and each Lender and each of its respective officers,
directors, employees, counsel, 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 Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of any 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 document contemplated by
or referred to herein, 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 or the Loans or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Obligations"); provided, that
the Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Obligations resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations.
85
93
12.6 Payments Set Aside. To the extent that the Company makes
a payment to the Administrative Agent or the Lenders, or the Administrative
Agent or the Lenders exercise their right of set-off, and such payment or the
proceeds of such set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including
pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any Insolvency Proceeding or otherwise, then (a) to
the extent of such recovery the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred and (b) each
Lender severally agrees to pay to the Administrative Agent upon demand its pro
rata share of any amount so recovered from or repaid by the Administrative
Agent, which had previously been received by such Lender.
12.7 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent and each Lender.
12.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Company at all times other than during the existence of
an Event of Default and the Administrative Agent, which consents shall not be
unreasonably withheld, at any time assign and delegate to one or more Eligible
Assignees (provided that no written consent of the Company, or the
Administrative Agent shall be required in connection with an assignment and
delegation by B of A or DLJ or in connection with any assignment and delegation
by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each
an "Assignee") all, or any part of all, of the Loans, the Revolving Commitment,
the L/C Obligations and the other rights and obligations of such Lender
hereunder, in a minimum amount of $5,000,000 (provided that no minimum amount
shall be applicable to any assignment and delegation to an existing Lender or an
Affiliate of a Lender or to an assignment of the entire remaining amount of the
Loans and Commitment of a Lender) provided, however, that the Company and the
Administrative 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
Company and the Administrative Agent by such Lender and the Assignee; (ii) such
Lender and its Assignee shall have delivered to the Company and the Agent an
Assignment and Acceptance substantially in the form of Exhibit G ("Assignment
and Acceptance"), together with any Note or Notes subject to such assignment,
(iii) the assignor Lender or Assignee has paid to the Administrative Agent a
processing fee in the amount of $3,000 and (iv) the information in the
Assignment and Acceptance is recorded in the Register pursuant to subsection (d)
hereof.
(b) From and after the date that the Administrative Agent
notifies the assignor Lender that it has received (and provided its consent with
respect to) an executed Assignment
86
94
and Acceptance and payment of the above-referenced processing fee and it has
recorded the information in the Register, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, 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 the
Loan Documents.
(c) Within five Business Days after its receipt of notice
by the Administrative Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee (and provided that it consents to
such assignment in accordance with subsection 12.8(a)), the Company shall
execute and deliver to the Administrative Agent, new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assignor Lender has
retained a portion of its Loans and its Commitments, replacement Notes in the
principal amount of the Loans retained by the assignor Lender (such Notes to be
in exchange for, but not in payment of, the Notes held by such Lender).
Immediately upon each Assignee making its processing fee payment under the
Assignment and Acceptance, 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 Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Lender pro tanto.
(d) The Company hereby designates the Administrative Agent
to serve as the Company's agent, solely for purposes of this Section 12.8(d), to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Lenders, the address and any U.S. federal
taxpayers identification number of each Lender, the Loans made by each of the
Lenders and each repayment in respect of the principal amount of the Loans of
each Lender. Failure to make any such recordation, or any error in such
recordation shall not affect Lender's obligations in respect of such Loans. With
respect to any Lender, the transfer of the Commitments of such Lender and the
rights to the principal of, and interest on, any Loan made pursuant to such
Commitments shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitments and loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitments and Loans shall remain owing to
the transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Acceptance pursuant to this Section 12.8.
Coincident with the delivery of such an Assignment and Acceptance to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Note evidencing such Loan, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the assigning or transferor Lender and/or the new Lender. The Company agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 12.8(d).
87
95
(e) Any Lender may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that
Lender 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 Company, the Issuing Lender and the
Administrative 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 to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders as
described in the first proviso to Section 12.1. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections 4.1,
4.3 and 12.5 as though it were also a Lender hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or shall have been declared
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
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 and the Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
12.9 Confidentiality. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Administrative Agent on such Company's or Subsidiary's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents or in connection with other
business now or hereafter existing or contemplated with the Company or any
Subsidiary; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Lender, or
(ii) was or becomes available on a non-confidential basis from a source other
than the Company, provided that such source is not bound by a confidentiality
agreement with the Company known to the Lender; provided, however, that any
Lender may disclose such information (A) at the request or pursuant to any
requirement of the National Association of Insurance Commissioners or any
Governmental Authority to which the Lender is subject or in connection with an
examination of such Lender by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
88
96
Agent, any Lender or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to such Lender's independent auditors and
other professional advisors; (G) to any Participant or Assignee, actual or
potential, provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder; (H) as to any
Lender or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the Company or any
Subsidiary is party or is deemed party with such Lender or such Affiliate; and
(I) to its Affiliates.
12.10 Set-off. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the Company
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 to or for the
credit or the account of the Company 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 Company and the Administrative 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.
12.11 Automatic Debits of Fees. With respect to any commitment fee,
arrangement fee, letter of credit fee or other fee, or any other cost or expense
(including Attorney Costs) due and payable to the Administrative Agent, the
Issuing Lender, B of A or the Arranger under the Loan Documents, the Company
hereby irrevocably authorizes B of A to debit any deposit account of the Company
with B of A in an amount such that the aggregate amount debited from all such
deposit accounts does not exceed such fee or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount of the fee or
other cost or expense then due, such debits will be reversed (in whole or in
part, in B of A's sole discretion) and such amount not debited shall be deemed
to be unpaid. No such debit under this Section shall be deemed a set-off.
12.12 Notification of Addresses, Lending Offices, etc. Each Lender
shall notify the Administrative Agent in writing of any changes in the address
to which notices to the Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Agent shall
reasonably request.
12.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
12.14 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the
89
97
legality or enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
12.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Agents and the Agent-Related Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary of,
or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
12.16 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND
THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF ILLINOIS; PROVIDED THAT THE AGENT, THE LENDERS AND THE BORROWER 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 ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENTS AND
THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENTS 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. THE
COMPANY, THE AGENTS AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
ILLINOIS LAW.
12.17 Waiver of Jury Trial. THE COMPANY, THE LENDERS AND THE AGENTS
EACH 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 COMPANY, THE
LENDERS AND THE AGENTS 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
90
98
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.
12.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Lenders and the Agents, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
91
99
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
AMERISERVE FOOD DISTRIBUTION, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Secretary
----------------------------------
000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By: /s/ R. Xxx Xxxxxxxxx
----------------------------------
Name: R. Xxx Xxxxxxxxx
----------------------------------
Title: Managing Director
----------------------------------
000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Issuing Lender and Lender
By: /s/ R. Xxx Xxxxxxxxx
----------------------------------
Name: R. Xxx Xxxxxxxxx
----------------------------------
Title: Managing Director
----------------------------------
102
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION, as
Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------
Title: Managing Director
----------------------------------
103
LASALLE NATIONAL BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Vice President
----------------------------------
104
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------
Title: Chief Manager
----------------------------------
105
SOUTHERN PACIFIC BANK,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
106
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
----------------------------------
Title: Senior Account Executive
----------------------------------
