Exhibit (4)
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POST-PETITION
CREDIT AGREEMENT
Dated as of
December 8, 2000
Among
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders
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BANK OF AMERICA, N.A.
..
as the Agent
and
XXXXX CORNING AND THE
SUBSIDIARIES OF XXXXX CORNING NAMED HEREIN
as the Borrowers
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iii
TABLE OF CONTENTS
Article Page
ARTICLE 1 LOANS AND LETTERS OF CREDIT.............................................................................0
1.1 TOTAL FACILITY...........................................................................................0
1.2 REVOLVING LOANS..........................................................................................0
1.3 [INTENTIONALLY OMITTED]..................................................................................0
1.4 LETTERS OF CREDIT........................................................................................0
1.5 BANK PRODUCTS............................................................................................0
1.6 JOINT AND SEVERAL LIABILITY OF BORROWERS.................................................................0
ARTICLE 2 INTEREST AND FEES.......................................................................................0
2.1 INTEREST.................................................................................................0
2.2 CONTINUATION AND CONVERSION ELECTIONS....................................................................0
2.3 MAXIMUM INTEREST RATE....................................................................................0
2.4 FACILITY FEE; SYNDICATION FEE; ADMINISTRATION FEE........................................................0
2.5 UNUSED LINE FEE..........................................................................................0
2.6 LETTER OF CREDIT FEE.....................................................................................0
ARTICLE 3 PAYMENTS AND PREPAYMENTS................................................................................0
3.1 REVOLVING LOANS..........................................................................................0
3.2 TERMINATION OF FACILITY; REDUCTIONS IN REVOLVING LOAN COMMITMENTS........................................0
3.3 [INTENTIONALLY OMITTED.].................................................................................0
3.4 [INTENTIONALLY OMITTED.].................................................................................0
3.5 LIBOR RATE LOAN PREPAYMENTS..............................................................................0
3.6 PAYMENTS BY THE BORROWERS................................................................................0
3.7 PAYMENTS AS REVOLVING LOANS..............................................................................0
3.8 APPORTIONMENT, APPLICATION AND REVERSAL OF PAYMENTS......................................................0
3.9 INDEMNITY FOR RETURNED PAYMENTS..........................................................................0
3.10 AGENT'S AND LENDERS' BOOKS AND RECORDS; MONTHLY STATEMENTS............................................0
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY..................................................................0
4.1 TAXES....................................................................................................0
4.2 ILLEGALITY...............................................................................................0
4.3 INCREASED COSTS AND REDUCTION OF RETURN..................................................................0
4.4 FUNDING LOSSES...........................................................................................0
4.5 INABILITY TO DETERMINE RATES.............................................................................0
4.6 CERTIFICATES OF AGENT....................................................................................0
4.7 SURVIVAL.................................................................................................0
4.8 AFFECTED LENDERS.........................................................................................0
ARTICLE 5 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES.......................................................0
5.1 BOOKS AND RECORDS........................................................................................0
5.2 FINANCIAL INFORMATION....................................................................................0
5.3 NOTICES TO THE LENDERS...................................................................................0
ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS..................................................................0
6.1 AUTHORIZATION, VALIDITY, AND ENFORCEABILITY OF THIS AGREEMENT AND THE LOAN DOCUMENTS.....................0
6.2 BORROWERS' ORGANIZATION AND QUALIFICATION OF BORROWERS...................................................0
6.3 [INTENTIONALLY OMITTED.].................................................................................0
6.4 OTHER SUBSIDIARIES AND AFFILIATES........................................................................0
6.5 FINANCIAL STATEMENTS AND PROJECTIONS.....................................................................0
6.6 [INTENTIONALLY OMITTED.].................................................................................0
6.7 DEBT.....................................................................................................0
6.8 [INTENTIONALLY OMITTED.].................................................................................0
6.9 TITLE TO PROPERTY; LIENS.................................................................................0
6.10 PROPRIETARY RIGHTS....................................................................................0
6.11 [INTENTIONALLY OMITTED.]..............................................................................0
6.12 LITIGATION............................................................................................0
6.13 [INTENTIONALLY OMITTED.]..............................................................................0
6.14 ENVIRONMENTAL LAWS....................................................................................0
6.15 NO VIOLATION OF LAW...................................................................................0
6.16 NO DEFAULT............................................................................................0
6.17 ERISA COMPLIANCE......................................................................................0
6.18 TAXES.................................................................................................0
6.19 REGULATED ENTITIES....................................................................................0
6.20 USE OF PROCEEDS; MARGIN REGULATIONS...................................................................0
6.21 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.....................................................0
6.22 FULL DISCLOSURE.......................................................................................0
6.23 GOVERNMENTAL AUTHORIZATION............................................................................0
6.24 SUBSIDIARY BORROWERS..................................................................................0
ARTICLE 7 AFFIRMATIVE AND NEGATIVE COVENANTS......................................................................0
7.1 TAXES AND OTHER OBLIGATIONS..............................................................................0
7.2 LEGAL EXISTENCE AND GOOD STANDING........................................................................0
7.3 COMPLIANCE WITH LAW AND AGREEMENTS; MAINTENANCE OF LICENSES..............................................0
7.4 MAINTENANCE OF PROPERTY; INSPECTION OF PROPERTY..........................................................0
7.5 INSURANCE................................................................................................0
7.6 ENVIRONMENTAL LAWS.......................................................................................0
7.7 COMPLIANCE WITH ERISA....................................................................................0
7.8 MERGERS, CONSOLIDATIONS OR SALES.........................................................................0
7.9 DISTRIBUTIONS; CAPITAL CHANGE; RESTRICTED INVESTMENTS....................................................0
7.10 [INTENTIONALLY OMITTED]...............................................................................0
7.11 GUARANTIES............................................................................................0
7.12 DEBT..................................................................................................0
7.13 PREPAYMENT............................................................................................0
7.14 TRANSACTIONS WITH AFFILIATES..........................................................................0
7.15 INVESTMENT BANKING AND FINDER'S FEES..................................................................0
7.16 BUSINESS CONDUCTED....................................................................................0
7.17 LIENS.................................................................................................0
7.18 [INTENTIONALLY OMITTED.]..............................................................................0
7.19 [INTENTIONALLY OMITTED.]..............................................................................0
7.20 FISCAL YEAR...........................................................................................0
7.21 CONSOLIDATED EBITDA...................................................................................0
7.22 [INTENTIONALLY OMITTED.]..............................................................................0
7.23 USE OF PROCEEDS.......................................................................................0
7.24 FURTHER ASSURANCES....................................................................................0
7.25 SECTION 364(C)(1) SUPERPRIORITY ADMINISTRATIVE CLAIM. (A)............................................0
7.26 BORROWERS' ACCOUNTS...................................................................................0
7.27 INVENTORY; RECORDS....................................................................................0
ARTICLE 8 CONDITIONS OF LENDING...................................................................................0
8.1 CONDITIONS PRECEDENT TO MAKING OF INITIAL LOANS..........................................................0
8.2 CONDITIONS PRECEDENT TO EACH LOAN........................................................................0
ARTICLE 9 DEFAULT; REMEDIES.......................................................................................0
9.1 EVENTS OF DEFAULT........................................................................................0
9.2 REMEDIES.................................................................................................0
ARTICLE 10 TERM AND TERMINATION...................................................................................0
10.1 TERM AND TERMINATION..................................................................................0
ARTICLE 11 AMENDMENTS; WAIVERs; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS...........................................0
11.1 AMENDMENTS AND WAIVERS................................................................................0
11.2 ASSIGNMENTS; PARTICIPATIONS...........................................................................0
ARTICLE 12 THE AGENT..............................................................................................0
12.1 APPOINTMENT AND AUTHORIZATION.........................................................................0
12.2 DELEGATION OF DUTIES..................................................................................0
12.3 LIABILITY OF AGENT....................................................................................0
12.4 RELIANCE BY AGENT.....................................................................................0
12.5 NOTICE OF DEFAULT.....................................................................................0
12.6 CREDIT DECISION.......................................................................................0
12.7 INDEMNIFICATION.......................................................................................0
12.8 AGENT IN INDIVIDUAL CAPACITY..........................................................................0
12.9 SUCCESSOR AGENT.......................................................................................0
12.10 WITHHOLDING TAX.......................................................................................0
12.11 [INTENTIONALLY OMITTED.]..............................................................................0
12.12 RESTRICTIONS ON ACTIONS BY LENDERS; SHARING OF PAYMENTS...............................................0
12.13 [INTENTIONALLY OMITTED]...............................................................................0
12.14 PAYMENTS BY AGENT TO LENDERS..........................................................................0
12.15 SETTLEMENT............................................................................................0
12.16 LETTERS OF CREDIT; INTRA-LENDER ISSUES................................................................0
12.17 CONCERNING THE RELATED LOAN DOCUMENTS.................................................................0
12.18 FIELD AUDIT AND EXAMINATION REPORTS; DISCLAIMER BY LENDERS............................................0
12.19 RELATION AMONG LENDERS................................................................................0
ARTICLE 13 MISCELLANEOUS..........................................................................................0
13.1 NO WAIVERS; CUMULATIVE REMEDIES.......................................................................0
13.2 SEVERABILITY..........................................................................................0
13.3 GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS....................................................0
13.4 WAIVER OF JURY TRIAL..................................................................................0
13.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES............................................................0
13.6 [INTENTIONALLY OMITTED.]..............................................................................0
13.7 FEES AND EXPENSES.....................................................................................0
13.8 NOTICES...............................................................................................0
13.9 WAIVER OF NOTICES.....................................................................................0
13.10 BINDING EFFECT........................................................................................0
13.11 INDEMNITY OF THE AGENT AND THE LENDERS BY THE BORROWERS...............................................0
13.12 LIMITATION OF LIABILITY...............................................................................0
13.13 FINAL AGREEMENT.......................................................................................0
13.14 COUNTERPARTS..........................................................................................0
13.15 CAPTIONS..............................................................................................0
13.16 RIGHT OF SETOFF.......................................................................................0
13.17 CONFIDENTIALITY.......................................................................................0
13.18 CONFLICTS WITH OTHER LOAN DOCUMENTS...................................................................0
ANNEXES, EXHIBITS AND SCHEDULES
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ANNEX A - DEFINED TERMS
EXHIBIT A - FORM OF REVOLVING LOAN NOTE
EXHIBIT B - FORM OF BORROWING BASE CERTIFICATE
EXHIBIT C - FINANCIAL STATEMENTS
EXHIBIT D - FORM OF NOTICE OF BORROWING
EXHIBIT E - FORM OF NOTICE OF CONTINUATION/CONVERSION
EXHIBIT F - FORM OF FINAL ORDER
EXHIBIT G - [INTENTIONALLY OMITTED]
EXHIBIT H - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
SCHEDULE 1.1 - LENDERS' COMMITMENTS (ANNEX A - DEFINED TERMS)
SCHEDULE 1.2 PERSONS DESIGNATED TO REQUEST BORROWINGS
SCHEDULE 6.2 - ORGANIZATION AND QUALIFICATIONS OF BORROWERS
SCHEDULE 6.4 - OTHER SUBSIDIARIES AND AFFILIATES
SCHEDULE 6.7 - DEBT; GUARANTIES; LIENS
SCHEDULE 6.12 - LITIGATION; JUDGMENTS
SCHEDULE 6.17 - ERISA COMPLIANCE
SCHEDULE 6.24 - OTHER DOMESTIC SUBSIDIARIES
SCHEDULE 7.14 - TRANSACTIONS WITH AFFILIATES
SCHEDULE A-1 - EXISTING INVESTMENTS
POST-PETITION CREDIT AGREEMENT
This Post-Petition Credit Agreement, dated as of December 8,
2000, among the financial institutions from time to time parties hereto (such
financial institutions, together with their respective successors and assigns,
are referred to hereinafter each individually as a "Lender" and collectively as
the "Lenders"), Bank of America, N.A. with an office at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as agent for the Lenders, Xxxxx Corning, a
Delaware corporation (the "Company"), and the Subsidiaries of the Company which
are parties to this Agreement (together with the Company and the other Domestic
Subsidiaries, if any, which hereafter are permitted to become parties to this
Agreement with the prior written consent of the Required Lenders, each a
"Borrower" and collectively, the "Borrowers").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, each of which is a debtor and
debtor-in-possession in a case pending under chapter 11 of the Bankruptcy Code
(the cases of the Borrowers each, a "Bankruptcy Case" and, collectively the
"Bankruptcy Cases"), have requested the Lenders to make available to the
Borrowers a revolving line of credit for loans and letters of credit in an
amount not to exceed $500,000,000, and which extensions of credit the Borrowers
will use for the purposes permitted hereunder;
WHEREAS, capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed thereto in Annex A
which is attached hereto and incorporated herein; the rules of construction
contained therein shall govern the interpretation of this Agreement, and all
Annexes, Exhibits and Schedules attached hereto are incorporated herein by
reference;
WHEREAS, the Lenders have agreed to make available to the
Borrowers a revolving credit facility upon the terms and conditions set forth in
this Agreement.
WHEREAS, on October 5, 2000 (the "Filing Date"), the Borrowers
filed voluntary petitions with the Bankruptcy Court initiating the Bankruptcy
Cases;
WHEREAS, the Borrowers have continued in possession of their
respective assets and in the management of their respective businesses as
debtors-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code;
WHEREAS, to provide security for the repayment of the loans
and letters of credit made available pursuant hereto and payment of the other
obligations of the Borrowers under the Loan Documents, the Borrowers have agreed
to provide the Agent and the Lenders (upon and after the entry of the Final
Order) with respect to the obligations of the Borrowers hereunder and under the
other Loan Documents, an allowed administrative expense claim in each of the
Bankruptcy Cases pursuant to section 364(c)(1) of the Bankruptcy Code having
priority over all administrative expenses of the kind specified in, or arising
or ordered under, any sections of the Bankruptcy Code, including without
limitation, sections 503(b), 105, 326, 328, 330, 331, 506(c), 507(a), 507(b),
546(c), 726 or 1112 of the Bankruptcy Code, subject only to the Carve-Out; and
WHEREAS, all of the claims granted in the Bankruptcy Cases to
the Agent and the Lenders shall be subject to the Carve-Out.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in this Agreement, and for good and valuable consideration,
the receipt of which is hereby acknowledged, the Lenders, the Agent, and the
Borrowers hereby agree as follows.
ARTICLE 1
LOANS AND LETTERS OF CREDIT
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1.1 Total Facility. Subject to all of the terms and conditions of this
Agreement, the Lenders agree to make available a total credit facility of up to
$500,000,000 (the "Total Facility") to the Borrowers from time to time until the
Termination Date. The Total Facility shall be composed of a revolving line of
credit consisting of Revolving Loans and Letters of Credit.
1.2 Revolving Loans.
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(a) (i) Amounts. Subject to the satisfaction of the conditions precedent set
forth in Article 8, each Lender severally, but not jointly, agrees, upon the
Borrower Representative's request from time to time on any Business Day during
the period from the Closing Date to the Termination Date, to make revolving
loans (the "Revolving Loans") to the Borrowers in amounts not to exceed such
Lender's Pro Rata Share of Availability, except for Non-Ratable Loans. The
Lenders, however, in their unanimous discretion, may elect to make Revolving
Loans or issue or arrange to have issued Letters of Credit in excess of the
Borrowing Base on one or more occasions, but if they do so, neither the Agent
nor the Lenders shall be deemed thereby to have changed the limits of the
Borrowing Base or to be obligated to exceed such limits on any other occasion.
If the Aggregate Revolver Outstandings would exceed Availability after giving
effect to any Borrowing, the Lenders may refuse to make or may otherwise
restrict the making of Revolving Loans as the Lenders determine until such
excess has been eliminated. The entire unpaid balance of the Revolving Loans and
all other non-contingent Obligations shall be immediately due and payable in
full in immediately available funds on the Termination Date.
(ii) The Borrowers shall execute and deliver to each Lender that requests
the same a note to evidence the Revolving Loans of that Lender to the Borrowers.
Each note shall be in the principal amount of the Lender's Pro Rata Share of the
Revolving Loan Commitments, dated the date hereof and substantially in the form
of Exhibit A (each a "Revolving Loan Note" and, collectively, the "Revolving
Loan Notes"). Each Revolving Loan Note shall represent the joint and several
obligation of the Borrowers to pay the amount of Lender's Pro Rata Share of the
Revolving Loan Commitments, or, if less, such Lender's Pro Rata Share of the
aggregate unpaid principal amount of all Revolving Loans to the Borrowers
together with interest thereon as prescribed in Section 2.1.
(b) Procedure for Borrowing.
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(1) Each Borrowing shall be made upon the Borrower Representative's
irrevocable written notice delivered to the Agent in the form of a
notice of borrowing ("Notice of Borrowing"), which must be received by
the Agent prior to (i) 12:00 noon (Chicago, Illinois time) three
Business Days prior to the requested Funding Date, in the case of LIBOR
Rate Loans and (ii) 11:00 a.m. (Chicago, Illinois time) on the
requested Funding Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which in the case of a LIBOR Rate Loan
must equal or exceed $5,000,000 (and increments of $1,000,000 in excess of such
amount);
(B) the requested Funding Date, which must be a Business Day;
(C) whether the Revolving Loans requested are to be Base Rate Revolving
Loans or LIBOR Revolving Loans (and if not specified, it shall be deemed a
request for a Base Rate Revolving Loan);
(D) the duration of the Interest Period for LIBOR Revolving Loans (and if
not specified, it shall be deemed a request for an Interest Period of one
month);
provided, however, that with respect to any Borrowing to be made on the Closing
Date, such Borrowings will initially consist of Base Rate Revolving Loans only.
(2) In lieu of delivering a Notice of Borrowing, the Borrower
Representative may give the Agent telephonic notice of such Borrowing
request for advances to the Designated Account(s). The Agent at all
times shall be entitled to rely on such telephonic notice in making
such Revolving Loans, regardless of whether any written confirmation is
received.
(3) The Borrower shall have no right to request a LIBOR Rate Loan while
an Event of Default has occurred and is continuing.
(c) Appointment of Borrower Representative; Reliance upon Authority.
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(1) Each Borrower hereby designates the Company as its representative and
agent on its behalf (the "Borrower Representative") for the purposes of
issuing Notices of Borrowing and Notices of Conversion/Continuation,
giving instructions with respect to the disbursement of the proceeds of
the Loans, selecting interest rate options, requesting Letters of
Credit, giving and receiving all other notices and consents hereunder
or under any of the other Loan Documents and taking all other actions
(including in respect of compliance with covenants) on behalf of any
Borrower or Borrowers under the Loan Documents. The Borrower
Representative hereby accepts such appointment. The Agent and each
Lender may regard any notice or other communication pursuant to any
Loan Document from the Borrower Representative as a notice or
communication from all Borrowers, and may give any notice or
communication required or permitted to be given to any Borrower or
Borrowers hereunder to the Borrower Representative on behalf of such
Borrower or Borrowers. Each Borrower agrees that each notice, election,
representation and warranty, covenant, agreement and undertaking made
on its behalf by the Borrower Representative shall be deemed for all
purposes to have been made by such Borrower and shall be binding upon
and enforceable against such Borrower to the same extent as if the same
had been made directly by such Borrower.
(2) Prior to the Closing Date, the Borrower Representative shall deliver to
the Agent, a notice setting forth an account of the Borrowers to which
the Agent is authorized to transfer the proceeds of the Revolving Loans
requested hereunder (the "Designated Account"). The Borrower
Representative may designate a replacement account from time to time by
written notice. Such Designated Account must be reasonably satisfactory
to the Agent. The Agent is entitled to rely conclusively on any request
by a person listed on Schedule 1.2 for Revolving Loans on behalf of the
Borrower Representative, so long as the proceeds thereof are to be
transferred to the Designated Account. The Agent has no duty to verify
the identity of any individual representing himself or herself as a
person authorized by the Borrower Representative to make such requests
on its behalf.
(d) No Liability. The Agent shall not incur any liability to any Borrower as a
result of acting upon any notice referred to in Sections 1.2(b) and (c), which
the Agent believes in good faith to have been given by an officer or other
person duly authorized by the Borrower Representative to request Revolving
Loans. The crediting of Revolving Loans to the Designated Account conclusively
establishes the joint and several obligation of the Borrowers to repay such
Revolving Loans as provided herein.
(e) Notice Irrevocable. Any Notice of Borrowing (or telephonic notice
-------------------
in lieu thereof) made pursuant to Section 1.2(b) and (c) shall be irrevocable.
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The Borrowers shall be bound to borrow the funds requested therein in
accordance therewith.
(f) Agent's Election. Promptly after receipt of a Notice of Borrowing (or
telephonic notice in lieu thereof) for a Base Rate Revolving Loan, the Agent
shall elect to have the terms of Section 1.2(g) or the terms of Section 1.2(h)
apply to such requested Borrowing. If the requested Borrowing consists of a
LIBOR Revolving Loan or if the Bank otherwise declines in its sole discretion to
make a Non-Ratable Loan pursuant to Section 1.2(h), the terms of Section 1.2(g)
shall apply to the requested Borrowing.
(g) Making of Revolving Loans. If the requested Borrowing consists of a LIBOR
Revolving Loan or if the Agent otherwise elects to have the terms of this
Section 1.2(g) apply to a requested Borrowing, then promptly after receipt of a
Notice of Borrowing or telephonic notice in lieu thereof, the Agent shall notify
the Lenders by telecopy, telephone or e-mail of the requested Borrowing. Each
Lender shall transfer its Pro Rata Share of the requested Borrowing available to
the Agent in immediately available funds, to the account from time to time
designated by Agent, not later than 12:00 noon (Chicago, Illinois time) on the
applicable Funding Date. The Agent shall make the proceeds of such Revolving
Loans (to the extent actually received by the Agent from the Lenders) available
to the Borrowers on the applicable Funding Date by transferring same day funds
to the Designated Account; provided, however, that, subject to the second
sentence of Section 1.2(a)(i), the amount of Revolving Loans so made on any date
shall not exceed the Availability on such date.
(h) Making of Non-Ratable Loans.
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(A) If the Agent elects, with the consent of the Bank, to have the
terms of this Section 1.2(h) apply to a requested Borrowing, the Bank shall
make a Revolving Loan in the amount of that Borrowing available to the
Borrowers on the applicable Funding Date by transferring same day funds to
the Designated Account. Each Revolving Loan made solely by the Bank
pursuant to this Section is herein referred to as a "Non-Ratable Loan", and
such Revolving Loans are collectively referred to as the "Non-Ratable
Loans." Each Non-Ratable Loan shall be subject to all the terms and
conditions applicable to other Revolving Loans except that all payments
thereon shall be payable to the Bank solely for its own account. The
aggregate amount of Non-Ratable Loans outstanding at any time shall not
exceed $30,000,000. The Agent shall not request the Bank to make any
Non-Ratable Loan if (1) the Agent has received written notice from any
Lender that one or more of the applicable conditions precedent set forth in
Article 8 will not be satisfied on the requested Funding Date for the
applicable Borrowing, or (2) the requested Borrowing would exceed
Availability on that Funding Date. The Agent shall not otherwise be
required to determine whether the applicable conditions precedent set forth
in Article 8 have been satisfied or the requested Borrowing would exceed
the Availability on that Funding Date applicable thereto prior to
requesting the Bank to make a Non-Ratable Loan.
(B) The Non-Ratable Loans shall constitute Base Rate Revolving Loans
and Obligations hereunder.
1.3 [Intentionally Omitted]
1.4 Letters of Credit.
(a) Agreement to Issue or Cause To Issue. Subject to the terms and conditions of
this Agreement, the Agent agrees (i) to cause the Letter of Credit Issuer to
issue for the account of any Borrower one or more commercial/documentary or
standby letters of credit ("Letter of Credit") and/or (ii) to provide credit
support or other enhancement to a Letter of Credit Issuer acceptable to Agent,
which issues a Letter of Credit for the account of any Borrower (any such credit
support or enhancement being herein referred to as a "Credit Support") from time
to time during the term of this Agreement. Letters of Credit may be requested
for the benefit of Other Subsidiaries, provided that a Borrower shall be the
account party with respect thereto and the foregoing shall not effect the
Borrowers' joint and several reimbursement Obligations with respect to such
Letters of Credit and any related Credit Supports, and, provided further, that
the sum of the undrawn face amount of all such Letters of Credit plus all
amounts drawn thereunder for which the Borrowers have not been repaid by the
Other Subsidiaries shall not exceed $50,000,000 in the aggregate at any time.
(b) Amounts; Outside Expiration Date. The Agent shall not have any obligation to
issue or cause to be issued any Letter of Credit or to provide Credit Support
for any Letter of Credit at any time if: (i) the maximum face amount of the
requested Letter of Credit is greater than the Unused Letter of Credit
Subfacility at such time; (ii) subject to the second sentence of Section
1.2(a)(i), the maximum face amount of the requested Letter of Credit and all
commissions, fees, and charges due from the Borrowers in connection with the
opening thereof would exceed Availability at such time; or (iii) such Letter of
Credit has an expiration date less than 5 Business Days prior to the Stated
Termination Date or more than 12 months from the date of issuance for standby
letters of credit (although any such Letter of Credit may provide for automatic
extensions of its expiration date for one or more successive 12 month periods
provided that the Letter of Credit Issuer has the right to terminate such Letter
of Credit on each such annual expiration date and no renewal term may extend the
final expiration date to a date later than the fifth Business Day prior to the
Stated Termination Date) and 180 days for documentary letters of credit. With
respect to any Letter of Credit which contains any "evergreen" or automatic
renewal provision, each Lender shall be deemed to have consented to any such
extension or renewal unless any such Lender shall have provided to the Agent,
written notice that it declines to consent to any such extension or renewal at
least thirty (30) days prior to the date on which the Letter of Credit Issuer is
entitled to decline to extend or renew the Letter of Credit. If all of the
requirements of this Section 1.4 are met and no Default or Event of Default has
occurred and is continuing, no Lender shall decline to consent to any such
extension or renewal.
(c) Other Conditions. In addition to conditions precedent contained in Article
8, the obligation of the Agent to issue or to cause to be issued any Letter of
Credit or to provide Credit Support for any Letter of Credit is subject to the
following conditions precedent having been satisfied in a manner reasonably
satisfactory to the Agent:
(1) The Borrower Representative shall have delivered to the Letter of
Credit Issuer, at such times and in such manner as such Letter of
Credit Issuer may prescribe, an application in form and substance
satisfactory to such Letter of Credit Issuer and reasonably
satisfactory to the Agent for the issuance of the Letter of Credit and
such other documents as may be required pursuant to the terms thereof,
and the form, terms and purpose of the proposed Letter of Credit shall
be reasonably satisfactory to the Agent and the Letter of Credit
Issuer; and
(2) As of the date of issuance, no order of any court, arbitrator or
Governmental Authority shall purport by its terms to enjoin or restrain
money center banks generally from issuing letters of credit of the type
and in the amount of the proposed Letter of Credit, and no law, rule or
regulation applicable to money center banks generally and no request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over money center banks
generally shall prohibit, or request that the proposed Letter of Credit
Issuer refrain from, the issuance of letters of credit generally or the
issuance of such Letters of Credit.
(d) Issuance of Letters of Credit.
-----------------------------
(1) Request for Issuance. The Borrower Representative must notify the Agent
of a requested Letter of Credit at least three (3) Business Days prior
to the proposed issuance date. Such notice shall be irrevocable and
must specify the Borrower for whose account such Letter of Credit will
be issued, the original face amount of the Letter of Credit requested,
the Business Day of issuance of such requested Letter of Credit,
whether such Letter of Credit may be drawn in a single or in partial
draws, the Business Day on which the requested Letter of Credit is to
expire, the purpose for which such Letter of Credit is to be issued,
and the beneficiary of the requested Letter of Credit. The Borrower
Representative shall attach to such notice the proposed form of the
Letter of Credit.
(2) Responsibilities of the Agent; Issuance. As of the Business Day
immediately preceding the requested issuance date of the Letter of
Credit, the Agent shall determine the amount of the Unused Letter of
Credit Subfacility and Availability. If (i) the face amount of the
requested Letter of Credit is less than the Unused Letter of Credit
Subfacility and (ii) the amount of such requested Letter of Credit and
all commissions, fees, and charges due from the Borrowers in connection
with the opening thereof would not exceed Availability (subject to the
second sentence of Section 1.2(a)(i)), the Agent shall cause the Letter
of Credit Issuer to issue the requested Letter of Credit on the
requested issuance date so long as the other conditions hereof are met.
(3) No Extensions or Amendment. The Agent shall not be obligated to cause
the Letter of Credit Issuer to extend or amend any Letter of Credit
issued pursuant hereto unless the requirements of this Section 1.4 are
met as though a new Letter of Credit were being requested and issued.
(e) Payments Pursuant to Letters of Credit.
--------------------------------------
The Borrowers jointly and severally agree to reimburse the Letter of
Credit Issuer for any draw under any Letter of Credit and the Agent for the
account of the Lenders upon any payment pursuant to any Credit Support
within one (1) Business Day following notification from the Letter of
Credit Issuer or the Agent of the amount of such drawing or payment, and to
pay the Letter of Credit Issuer the amount of all other charges and fees
payable to the Letter of Credit Issuer in connection with any Letter of
Credit within one (1) Business Day following notification from the Letter
of Credit Issuer or the Agent of the amount of such other charges and fees
then due, irrespective of (but without waiving) any claim, setoff, defense
or other right which any Borrower may have at any time against the Letter
of Credit Issuer or any other Person. The failure of the Borrowers to
satisfy any such reimbursement or other payment obligation by 12:00 noon
(Chicago, Illinois time) on the date when due as set forth above shall
constitute a request by the Borrowers to the Agent for a Borrowing of a
Base Rate Revolving Loan in the unpaid amount of such reimbursement or
other payment obligation. The Funding Date with respect to such Borrowing
shall be the date such reimbursement or other payment obligation was due.
(f) Indemnification; Exoneration; Power of Attorney
(1) Indemnification. In addition to amounts payable as elsewhere provided
in this Section 1.4, the Borrowers jointly and severally agree to
protect, indemnify, pay and save the Lenders and the Agent harmless
from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys'
fees) which any Lender or the Agent (other than any Lender in its
capacity as Letter of Credit Issuer) may incur or be subject to as a
consequence, direct or indirect, of the issuance of any Letter of
Credit or the provision of any Credit Support or enhancement in
connection therewith, other than to the extent solely as a result of
such Person's gross negligence or willful misconduct. The Borrowers'
obligations under this Section shall survive payment of all other
Obligations.
(2) Assumption of Risk by the Borrowers. As among the Borrowers, the
Lenders, and the Agent, the Borrowers assume all risks of the acts and
omissions of, or misuse of any of the Letters of Credit by, the
respective beneficiaries of such Letters of Credit. In furtherance and
not in limitation of the foregoing, the Lenders and the Agent shall not
be responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any Person in
connection with the application for and issuance of and presentation of
drafts with respect to any of the Letters of Credit, even if it should
prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (C) the failure of the beneficiary of any
Letter of Credit to comply duly with conditions required in order to
draw upon such Letter of Credit; (D) errors, omissions, interruptions,
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (E)
errors in interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit or of the proceeds thereof; (G)
the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; (H) any
consequences arising from causes beyond the control of the Lenders or
the Agent, including any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto Governmental Authority or
(I) subject to Section 1.4(f)(4), the Letter of Credit Issuer's honor
of a draw for which the draw or any certificate fails to comply in any
respect with the terms of the Letter of Credit. None of the foregoing
shall affect, impair or prevent the vesting of any rights or powers of
the Agent or any Lender under this Section 1.4(f).
(3) Exoneration. Without limiting the foregoing, no action or omission
whatsoever by Agent or any Lender (excluding any Lender in its capacity
as a Letter of Credit Issuer) under or in connection with any Letter of
Credit or Credit Support, if taken or omitted in the absence of gross
negligence or willful misconduct on the part of such Person, shall
result in any liability of Agent or any Lender to any Borrower, or
relieve any Borrower of any of its obligations hereunder to any such
Person.
(4) Rights Against Letter of Credit Issuer. Nothing contained in this
Agreement is intended to limit any Borrower's (i) rights, if any, with
respect to any Letter of Credit Issuer which arise as a result of the
letter of credit application and related documents executed by and
between such Borrower and such Letter of Credit Issuer or (ii) claims
for direct (as opposed to special, indirect, consequential or punitive)
damages, if any, suffered by such Borrower that are caused by (A) such
Letter of Credit Issuer's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit
comply with the terms of such Letter of Credit, or (B) such Letter of
Credit Issuer's willful failure to pay under any Letter of Credit after
the presentation to it of documents strictly complying with the terms
and conditions of such Letter of Credit.
(5) Indemnification by Lenders. To the extent not reimbursed by the
Borrowers and without limiting the obligations of the Borrowers
hereunder, the Lenders agree to indemnify the Letter of Credit Issuer
ratably in accordance with their respective Pro Rata Shares, for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees) or
disbursements of any kind and nature whatsoever that may be imposed on,
incurred by or asserted against the Letter of Credit Issuer in any way
relating to or arising out of any Letter of Credit or the transactions
contemplated thereby or any action taken or omitted by the Letter of
Credit Issuer under any Letter of Credit or any Loan Document in
connection therewith; provided that no Lender shall be liable for any
of the foregoing to the extent it arises from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation
of the foregoing, each Lender agrees to reimburse the Letter of Credit
Issuer promptly upon demand for its Pro Rata Share of any costs or
expenses payable by any Borrower to the Letter of Credit Issuer, to the
extent that the Letter of Credit Issuer is not promptly reimbursed for
such costs and expenses by the Borrowers. The agreement contained in
this Section shall survive payment in full of all other Obligations.
(6) Account Party. Each Borrower hereby authorizes and directs any Letter
of Credit Issuer to name such Borrower as the "Account Party" therein
and to deliver to the Agent all instruments, documents and other
writings and property received by the Letter of Credit Issuer pursuant
to the Letter of Credit, and to accept and rely upon the Agent's
instructions and agreements with respect to all matters arising in
connection with the Letter of Credit or the application therefor.
(g) Supporting Letter of Credit; Cash Collateral. If, notwithstanding the
provisions of Section 1.4(b) and Section 10.1, any Letter of Credit or Credit
Support is outstanding upon the termination of this Agreement, then upon such
termination the Borrowers shall, with respect to each Letter of Credit or Credit
Support then outstanding, at the election of the Borrower Representative either
(i) deposit with the Agent, for the ratable benefit of the Agent and the
Lenders, a standby letter of credit (a "Supporting Letter of Credit") in form
and substance reasonably satisfactory to the Agent, issued by an issuer
reasonably satisfactory to the Agent or (ii) deposit immediately available funds
into a cash collateral account with the Agent and under the sole dominion and
control of the Agent (the "Cash Collateral"), for the ratable benefit of the
Agent and the Lenders, in either case in an amount equal to the greatest amount
for which such Letter of Credit or such Credit Support may be drawn plus any
fees and expenses associated with such Letter of Credit or such Credit Support.
The Agent shall be entitled to make draws under such Supporting Letter of
Credit, or to indefeasibly apply such Cash Collateral, in amounts necessary to
reimburse the Agent and the Lenders for payments to be made by the Agent and the
Lenders under such Letter of Credit or Credit Support and any fees and expenses
associated with such Letter of Credit or Credit Support. Such Supporting Letter
of Credit or Cash Collateral shall be held by the Agent, for the ratable benefit
of the Agent and the Lenders, as security for, and to provide for the payment
of, the aggregate undrawn amount of such Letters of Credit or such Credit
Support remaining outstanding. After such Letters of Credit and such Credit
Supports shall have expired or otherwise have been fully drawn upon and all
reimbursement obligations with respect thereto shall have been paid in full, the
balance, if any, of such Cash Collateral and/or all remaining outstanding
Supporting Letters of Credit, if any, shall be returned to the Borrower
Representative or as otherwise required by law.
1.5 Bank Products. Any Borrower may request and the Bank may, in its sole and
absolute discretion, arrange for any Borrower to obtain from the Bank or the
Bank's Affiliates Bank Products although no Borrower is required to do so. If
Bank Products are provided by an Affiliate of the Bank, the Borrowers jointly
and severally agree to indemnify and hold the Bank and the Lenders harmless from
any and all costs and obligations now or hereafter incurred by the Bank or any
of the Lenders which arise from any indemnity given by the Bank to its
Affiliates related to such Bank Products; provided, however, nothing contained
herein is intended to limit any Borrower's rights, with respect to the Bank or
its Affiliates, if any, which arise as a result of the execution of documents by
and between such Borrower and the Bank which relate to Bank Products. The
agreement contained in this Section shall survive termination of this Agreement.
The Borrowers acknowledge and agree that the obtaining of Bank Products from the
Bank or the Bank's Affiliates (a) is in the sole and absolute discretion of the
Bank or the Bank's Affiliates, and (b) is subject to all rules and regulations
of the Bank or the Bank's Affiliates.
1.6 Joint and Several Liability of Borrowers. Each Borrower acknowledges and
agrees that all Obligations (including without limitation the Borrowers'
Obligations in respect of the Loans and in respect of any Letter of Credit or
Credit Support) shall be the joint and several obligations of the Borrowers,
regardless of whether such Borrower actually receives Loans or other extensions
of credit hereunder or the amounts of such Loans received or the manner in which
the Agent and/or any Lender accounts for such Loans or other extensions of
credit on its books and records.
ARTICLE 2
INTEREST AND FEES
2.1 Interest.
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(a) Interest Rates. All outstanding Loans shall bear interest on the unpaid
principal amount thereof (including, to the extent permitted by law, on interest
thereon not paid when due) from the date made until paid in full in cash at a
rate determined by reference to the Base Rate or the LIBOR Rate plus the
Applicable Margins as set forth below, but not to exceed the Maximum Rate. If at
any time Loans are outstanding with respect to which the Borrower Representative
has not delivered to the Agent a notice specifying the basis for determining the
interest rate applicable thereto in accordance herewith, those Loans shall bear
interest at a rate determined by reference to the Base Rate until notice to the
contrary has been given to the Agent in accordance with this Agreement and such
notice has become effective. Except as otherwise provided herein, the
outstanding Loans shall bear interest as follows:
(i) For all Base Rate Loans at a fluctuating per annum rate equal to the
Base Rate plus the Applicable Margin; and
(ii) For all LIBOR Rate Loans at a per annum rate equal to the LIBOR Rate
plus the Applicable Margin.
Each change in the Base Rate shall be reflected in the interest rate applicable
to Base Rate Loans as of the effective date of such change. All interest charges
shall be computed on the basis of a year of 360 days and actual days elapsed
(which results in more interest being paid than if computed on the basis of a
365-day year). The Borrowers shall pay to the Agent, for the ratable benefit of
Lenders, interest accrued on all Base Rate Loans in arrears on the first day of
each month hereafter and on the Termination Date. The Borrowers shall pay to the
Agent, for the ratable benefit of Lenders, interest on all LIBOR Rate Loans in
arrears on each LIBOR Interest Payment Date.
(b) Default Rate. If any Event of Default occurs and is continuing and the Agent
or the Required Lenders in their discretion so elect, then, while any such Event
of Default is continuing, the outstanding principal balance of all Loans
(including, to the maximum extent permitted by law, accrued and unpaid interest
thereon) shall bear interest at the Default Rate applicable to such Loans.
2.2 Continuation and Conversion Elections.
-------------------------------------
(a) The Borrower Representative may:
(i) elect, as of any Business Day, to convert any Base Rate Loans or any part
thereof (in an amount not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof) into LIBOR Rate Loans; or
(ii) elect, as of the last day of the applicable Interest Period, to continue
any LIBOR Rate Loans having Interest Periods expiring on such day or any part
thereof (in an amount not less than $5,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of LIBOR Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $5,000,000, such LIBOR Rate Loans shall
automatically convert into Base Rate Loans; provided further that if the Notice
of Continuation/Conversion shall fail to specify the duration of the Interest
Period, such Interest Period shall be one month.
(b) The Borrower Representative shall deliver a notice of
continuation/conversion ("Notice of Continuation/Conversion") to the Agent not
later than 12:00 noon (Chicago, Illinois time) at least three (3) Business Days
in advance of the Continuation/Conversion Date, if the Loans are to be converted
into or continued as LIBOR Rate Loans and specifying:
(i) the proposed Continuation/Conversion Date;
(ii) the aggregate amount of Loans to be converted or continued;
(iii) the type of Loans resulting from the proposed conversion or continuation;
and
(iv) the duration of the requested Interest Period, provided, however, the
Borrower Representative may not select an Interest Period that ends after the
Stated Termination Date.
(c) If upon the expiration of any Interest Period applicable to LIBOR Rate
Loans, the Borrower Representative has failed to select timely a new Interest
Period to be applicable to LIBOR Rate Loans or if any Event of Default then
exists, the Borrower Representative shall be deemed to have elected to convert
such LIBOR Rate Loans into Base Rate Loans effective as of the expiration date
of such Interest Period.
(d) The Agent will promptly notify each Lender of its receipt of a Notice of
Continuation/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) There may not be more than nine (9) different Interest Periods with respect
to LIBOR Rate Loans in effect hereunder at any time.
2.3 Maximum Interest Rate. In no event shall any interest rate provided for
hereunder exceed the maximum rate legally chargeable by any Lender under
applicable law for such Lender with respect to loans of the type provided for
hereunder (the "Maximum Rate"). If, in any month, any interest rate, absent such
limitation, would have exceeded the Maximum Rate, then the interest rate for
that month shall be the Maximum Rate, and, if in future months, that interest
rate would otherwise be less than the Maximum Rate, then that interest rate
shall remain at the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
had not been limited by the Maximum Rate. In the event that, upon payment in
full of the Obligations, the total amount of interest paid or accrued under the
terms of this Agreement is less than the total amount of interest which would,
but for this Section 2.3, have been paid or accrued if the interest rate
otherwise set forth in this Agreement had at all times been in effect, then the
Borrowers shall, to the extent permitted by applicable law, pay the Agent, for
the account of the Lenders, an amount equal to the excess of (a) the lesser of
(i) the amount of interest which would have been charged if the Maximum Rate
had, at all times, been in effect or (ii) the amount of interest which would
have accrued had the interest rate otherwise set forth in this Agreement, at all
times, been in effect over (b) the amount of interest actually paid or accrued
under this Agreement. If a court of competent jurisdiction determines that the
Agent and/or any Lender has received interest and other charges hereunder in
excess of the Maximum Rate, such excess shall be deemed received on account of,
and shall automatically be applied to reduce, the Obligations other than
interest, in the inverse order of maturity, and if there are no Obligations
outstanding, the Agent and/or such Lender shall refund to the Borrower
Representative, on behalf of the Borrowers, such excess.
2.4 Facility Fee; Syndication Fee; Administration Fee. The Borrowers
jointly and severally agree to pay the Agent, for the Agent's sole account, on
the Closing Date:
(a) a facility fee (the "Facility Fee") in the amount $2,500,000;
(b) a syndication fee (the "Syndication Fee") in the amount of $2,500,000;
and
(c) an administration fee (the "Administration Fee") in the amount of
$200,000.
The Agent shall apply the commitment fee in the amount of $1,000,000 previously
paid by the Borrowers to the Agent pursuant to the commitment letter dated
October 4, 2000 among the Agent and the Borrowers (the "Commitment Letter")
against the Facility Fee referred to above.
2.5 Unused Line Fee. On the first Business Day of each month (or, if later, on
the first Business Day following notification by the Agent to the Borrower
Representative of the amount owing hereunder on such date) and on the
Termination Date, the Borrowers jointly and severally agree to pay to the Agent,
for the account of the Lenders, in accordance with their respective Pro Rata
Shares, an unused line fee (the "Unused Line Fee") equal to three-eighths of one
percent (.375%) per annum times the amount by which the Maximum Revolver Amount
exceeded the sum of the average daily outstanding principal amount of Revolving
Loans and the average daily undrawn face amount of outstanding Letters of Credit
during the immediately preceding month or shorter period if calculated on the
Termination Date. The Unused Line Fee shall be computed on the basis of a
360-day year for the actual number of days elapsed. All principal payments
received by the Agent shall be deemed to be credited to the Borrowers' Loan
Account immediately upon receipt for purposes of calculating the Unused Line Fee
pursuant to this Section 2.5.
2.6 Letter of Credit Fee. With respect to any month during which a Letter of
Credit is outstanding, the Borrowers jointly and severally agree to pay to the
Agent, for the account of the Lenders, in accordance with their respective Pro
Rata Shares, for Letters of Credit, a fee (the "Letter of Credit Fee") equal to
the Applicable L/C Margin per annum from time to time in effect multiplied by
the average daily maximum aggregate amount from time to time available to be
drawn under all outstanding Letters of Credit during such month, and to the
Letter of Credit Issuer, all out-of-pocket costs, fees and expenses incurred by
the Letter of Credit Issuer in connection with the application for, processing
of, issuance of, or amendment to any Letter of Credit, which costs, fees and
expenses shall include a "fronting fee" of one-quarter of one percent (0.25%)
per annum of the average daily maximum aggregate amount from time to time
available to be drawn under all outstanding standby Letters of Credit during
such month, payable to the Letter of Credit Issuer. The Letter of Credit Fee
shall be payable monthly in arrears on the first Business Day of each month
following any month in which a Letter of Credit is outstanding (or, if later, on
the first Business Day following notification by the Agent to the Borrower
Representative of the amount owing hereunder on such date) and on the
Termination Date. The Letter of Credit Fee shall be computed on the basis of a
360-day year for the actual number of days elapsed.
ARTICLE 3
PAYMENTS AND PREPAYMENTS
3.1 Revolving Loans. The Borrowers shall repay the outstanding principal balance
of the Revolving Loans, plus all accrued but unpaid interest thereon, on the
Termination Date. The Borrowers may prepay Revolving Loans in whole or in part
at any time, and reborrow subject to the terms of this Agreement. In addition,
and without limiting the generality of the foregoing, upon demand the Borrowers
shall pay to the Agent, for account of the Lenders, the amount, without
duplication, by which the Aggregate Revolver Outstandings exceeds the lesser of
the Borrowing Base or the Maximum Revolver Amount.
3.2 Termination of Facility; Reductions in Revolving Loan Commitments. The
Borrower Representative may terminate this Agreement upon at least five (5)
Business Days' notice to the Agent and the Lenders and to the Committee, upon
(a) the payment in full of all outstanding Revolving Loans, together with
accrued and unpaid interest thereon, and the cancellation and return of all
outstanding Letters of Credit (or the delivery of Supporting Letters of Credit
or Cash Collateral in respect thereof in accordance with Section 1.4(g)), (b)
the payment in full in cash of all reimbursable expenses and other Obligations,
and (c) with respect to any LIBOR Rate Loans prepaid in connection with such
termination prior to the expiration date of the Interest Period applicable
thereto, the payment of the amounts described in Section 4.4. The Agent and the
Lenders shall be entitled to assume (without any investigation) that any notice
required to be delivered hereunder by the Borrower to the Committee has been so
delivered.
In addition, after the first anniversary of the Closing Date,
the Borrower Representative may, from time to time, permanently reduce (but not
terminate) the Revolving Loan Commitments (which will result in a corresponding
reduction in the Maximum Revolver Amount) upon at least five (5) Business Days
notice to the Agent and the Lenders and to the Committee; provided that (a) any
such reduction shall be in a minimum amount of $50,000,000 and integral
multiples of $50,000,000 in excess of such amount, (b) the Revolving Loan
Commitments (and the Maximum Revolver Amount) shall not be reduced to an amount
less than $300,000,000 and (c) after giving effect to any such reduction (and
the corresponding reduction in the Maximum Revolver Amount), Availability shall
be greater than zero. The Agent and the Lenders shall be entitled to assume
(without any investigation) that any notice required to be delivered hereunder
by the Borrower to the Committee has been so delivered.
3.3 [Intentionally omitted.]
----------------------
3.4 [Intentionally omitted.]
----------------------
3.5 LIBOR Rate Loan Prepayments. In connection with any prepayment of LIBOR Rate
Loans, if any LIBOR Rate Loans are prepaid prior to the expiration date of the
Interest Period applicable thereto, the Borrowers shall pay to the Lenders the
amounts described in Section 4.4.
3.6 Payments by the Borrowers.
-------------------------
(a) All payments to be made by the Borrowers shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein, all
payments by the Borrowers shall be made to the Agent for the account of the
Lenders, at the account designated by the Agent and shall be made in Dollars and
in immediately available funds, no later than 12:00 noon (Chicago, Illinois
time) on the date specified herein. Any payment received by the Agent after such
time shall be deemed (for purposes of calculating interest only) to have been
received on the following Business Day and any applicable interest or fee shall
continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest Period",
whenever any payment is due on a day other than a Business Day, such payment
shall be due on the following Business Day, and such extension of time shall in
such case be included in the computation of interest or fees, as the case may
be.
3.7 Payments as Revolving Loans. At the election of the Agent, all payments of
principal, interest, reimbursement obligations in connection with Letters of
Credit and Credit Support for Letters of Credit, fees, premiums, reimbursable
expenses and other sums payable hereunder which are not made on or before 12:00
noon (Chicago, Illinois time) on the due date specified herein, may be paid from
the proceeds of Revolving Loans made hereunder. The Borrowers hereby irrevocably
authorize the Agent to charge the Loan Account for the purpose of paying all
amounts from time to time due hereunder which are not paid on or before 12:00
noon (Chicago time) on the due date specified herein and agrees that all such
amounts charged shall constitute Revolving Loans (including Non-Ratable Loans).
3.8 Apportionment, Application and Reversal of Payments. Principal and interest
payments shall be apportioned ratably among the Lenders (according to the unpaid
principal balance of the Loans to which such payments relate held by each
Lender) and payments of the fees shall, as applicable, be apportioned ratably
among the Lenders, except for fees payable solely to Agent and the Letter of
Credit Issuer and except as provided in Section 11.1(b). All payments shall be
remitted to the Agent and all such payments not relating to principal or
interest of specific Loans, or not constituting payment of specific fees, shall
be applied, ratably, subject to the provisions of this Agreement, first, to pay
any fees, indemnities or expense reimbursements including any such amounts
relating to Bank Products then due to the Agent from the Borrowers; second, to
pay any fees or expense reimbursements then due to the Lenders from the
Borrowers; third, to pay interest due in respect of all Revolving Loans,
including Non-Ratable Loans; fourth, to pay or prepay principal of the
Non-Ratable Loans; fifth, to pay or prepay principal of the Revolving Loans
(other than Non-Ratable Loans) and unpaid reimbursement obligations in respect
of Letters of Credit; sixth, to cash collateralize outstanding Letters of
Credit; and seventh, to the payment of any other Obligation including any
amounts relating to Bank Products due to the Bank or any Affiliate of the Bank
by any Borrower. Notwithstanding anything to the contrary contained in this
Agreement, unless so directed by the Borrower Representative, or unless an Event
of Default has occurred and is continuing, neither the Agent nor any Lender
shall apply any payments which it receives to any LIBOR Rate Loan, except (a) on
the expiration date of the Interest Period applicable to any such LIBOR Rate
Loan, or (b) in the event, and only to the extent, that there are no outstanding
Base Rate Loans and, in any event, the Borrowers shall pay LIBOR breakage losses
in accordance with Section 4.4.
3.9 Indemnity for Returned Payments. If after receipt of any payment which is
applied to the payment of all or any part of the Obligations, the Agent or any
Lender is for any reason compelled to surrender such payment or proceeds to any
Person because such payment or application of proceeds is invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference,
impermissible setoff, or a diversion of trust funds, or for any other reason,
then the Obligations or part thereof intended to be satisfied shall be revived
and continued and this Agreement shall continue in full force as if such payment
or proceeds had not been received by the Agent or such Lender and the Borrowers
shall be liable to pay to the Agent and the Lenders, and hereby do indemnify the
Agent and the Lenders and hold the Agent and the Lenders harmless for the amount
of such payment or proceeds surrendered. The provisions of this Section 3.9
shall be and remain effective notwithstanding any contrary action which may have
been taken by the Agent or any Lender in reliance upon such payment or
application of proceeds, and any such contrary action so taken shall be without
prejudice to the Agent's and the Lenders' rights under this Agreement and shall
be deemed to have been conditioned upon such payment or application of proceeds
having become final and irrevocable. The provisions of this Section 3.9 shall
survive the termination of this Agreement.
3.10 Agent's and Lenders' Books and Records; Monthly Statements. The Agent shall
record the principal amount of the Loans owing to each Lender, the undrawn face
amount of all outstanding Letters of Credit and the aggregate amount of unpaid
reimbursement obligations outstanding with respect to the Letters of Credit from
time to time on its books. In addition, each Lender may note the date and amount
of each payment or prepayment of principal of such Lender's Loans in its books
and records. Failure by Agent or any Lender to make such notation shall not
affect the obligations of the Borrowers with respect to the Loans or the Letters
of Credit. The Borrowers agree that the Agent's and each Lender's books and
records showing the Obligations and the transactions pursuant to this Agreement
and the other Loan Documents shall be admissible in any action or proceeding
arising therefrom, and shall constitute rebuttably presumptive proof thereof,
irrespective of whether any Obligation is also evidenced by a promissory note or
other instrument. The Agent will provide to the Borrower Representative a
monthly statement of Loans, payments, and other transactions pursuant to this
Agreement. Such statement shall be deemed correct, accurate, and binding on the
Borrowers and an account stated (except for corrections of errors discovered by
the Agent), unless the Borrower Representative notifies the Agent in writing to
the contrary within thirty (30) days after such statement is rendered. In the
event a timely written notice of objections is given by the Borrower
Representative, only the items to which exception is expressly made will be
considered to be disputed by the Borrower Representative.
ARTICLE 4
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes.
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(a) Any and all payments by each Borrower to each Lender or the Agent under this
Agreement and any other Loan Document shall be made free and clear of, and
without deduction or withholding for any Taxes. In addition, the Borrowers shall
pay all Other Taxes.
(b) The Borrowers jointly and severally agree to indemnify and hold harmless
each Lender and the Agent for the full amount of Taxes or Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section) paid by any Lender or the Agent in respect to any sum payable
hereunder 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 such Lender or the
Agent makes written demand therefor to the Borrower Representative.
(c) If any Borrower shall be required by law to deduct or withhold any Taxes or
Other Taxes from or in respect of any sum payable hereunder to any Lender or the
Agent, then (provided the Borrowers shall not be required to pay such Taxes if
such obligation to withhold or pay Taxes results from, or would not have
occurred but for the failure of such Lender to deliver the forms described in
Section 12.10 in the manner and at the times specified in such Section unless
Lender is legally not able to deliver such forms) then:
(i) the sum payable shall be increased as necessary so that after making all
required deductions and withholdings of such Taxes or Other Taxes (including
deductions and withholdings applicable to additional sums payable under this
Section) such Lender or the Agent, as the case may be, receives an amount equal
to the sum it would have received had no such deductions or withholdings been
made;
(ii) such Borrower shall make such deductions and withholdings;
(iii) such Borrower shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with applicable law;
and
(iv) such Borrower shall also pay to each Lender or the Agent for the account of
such Lender, at the time interest is paid, all additional amounts which the
respective Lender specifies as reasonably necessary to preserve the after-tax
yield such Lender would have received if such Taxes or Other Taxes had not been
imposed.
(d) At the Agent's request, within 30 days after the date of any payment by any
Borrower of Taxes or Other Taxes, the Borrower Representative shall furnish the
Agent the original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment reasonably satisfactory to the Agent.
(e) If any Borrower is required to pay additional amounts to any Lender or the
Agent pursuant to this Section 4.1, 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 such Borrower which may thereafter accrue, if such change in the
judgment of such Lender is not otherwise disadvantageous to such Lender.
(f) If a Lender shall become aware (without any duty to investigate) that it may
be entitled to claim a refund in respect of any Taxes or Other Taxes as to which
it has been fully indemnified by any of the Borrowers pursuant to this Section
4.1, such Lender (i) shall promptly notify the Borrower Representative of the
possibility of claiming such refund and (ii) shall, after receipt of a request
by the Borrower Representative, apply for such refund. If a Lender is required
to apply for a refund of Taxes or Other Taxes pursuant to the preceding
sentence, the Borrowers shall reimburse the Lender for its expenses incurred in
respect of such claim for refund. If any Lender receives a refund in respect of
any Taxes or Other Taxes as to which it has been fully indemnified by any of the
Borrowers pursuant to this Section 4.1, it shall promptly notify the Borrower
Representative of such refund and pay such refund to the Borrower Representative
(to the extent of amounts that have been fully paid by any of the Borrowers
under this Section 4.1 with respect to such refund and had not previously been
reimbursed), net of all out-of-pocket expenses of such Lender and without
interest (other than the interest, if any, included in such refund net of any
Taxes payable with respect to receipt of such refund). This Section shall apply
only (i) if the Lender determines that it can apply and pay over such refund
without prejudice to the retention of the refund and (ii) such Lender has
determined that such refund will leave such Lender after such payment in a
position no worse then it would have been if the Borrower had not been required
to make such deduction or withholding. The Lender shall not be obligated to
disclose to the Borrower any information regarding its tax affairs or
computations, and nothing in this Section 4.1(f) shall interfere with the right
of the Lender to arrange its tax affairs as it deems appropriate or impose an
obligation on such Lender to obtain any refund if, in its sole opinion, to do so
would (x) impose undue hardships, burdens or expenditures on it or (y) increase
its exposure to taxation by the jurisdiction in question.
(g) Limitations. Notwithstanding anything to the contrary contained herein,
unless an assignment to a new Lender had been made at the request of the
Borrowers or such an assignment to a new Lender occurred while an Event of
Default was continuing; no Borrower shall be required to pay any additional
amount in respect of the withholding of United States Federal income taxes
pursuant to this Section 4.1 to any Lender except to the extent such withholding
is a result of a change of law enacted after the date such Person becomes or
became a Lender.
4.2 Illegality.
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(a) If any Lender determines that the introduction of any Requirement of Law, or
any change in any Requirement of Law, or in the interpretation or administration
of any Requirement of Law, has made it unlawful, or that any central bank or
other Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable lending office to make LIBOR Rate Loans, then, on notice thereof
by that Lender to the Borrower Representative through the Agent, any obligation
of that Lender to make LIBOR Rate Loans shall be suspended until that Lender
notifies the Agent and the Borrower Representative that the circumstances giving
rise to such determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any LIBOR Rate Loan,
the Borrowers shall, upon the Borrower Representative's receipt of notice of
such fact and demand from such Lender (with a copy to the Agent), be deemed to
have automatically converted such LIBOR Rate Loans to such Lender then
outstanding into Base Rate Loans, either on the last day of the Interest Period
thereof, if that Lender may lawfully continue to maintain such LIBOR Rate Loans
to such day, or immediately, if that Lender may not lawfully continue to
maintain such LIBOR Rate Loans.
4.3 Increased Costs and Reduction of Return.
---------------------------------------
(a) If any Lender determines that due to either (i) the introduction of or any
change in the interpretation of any law or regulation adopted after the date
hereof 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) adopted after the date hereof, there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
LIBOR Rate Loans, then the Borrowers shall be liable for, and shall from time to
time, within fifteen (15) days following written demand therefor by such Lender
to the Borrower Representative (with a copy of such demand to be sent to the
Agent), pay to the Agent for the account of such Lender, additional amounts as
are sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (i) the introduction of any Capital
Adequacy Regulation after the date hereof, (ii) any change in any Capital
Adequacy Regulation after the date hereof, (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 after the date hereof, or (iv) compliance by such Lender
or any corporation or other entity controlling such Lender with any Capital
Adequacy Regulation adopted after the date hereof, affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation or other entity controlling such Lender (excluding any reserve that
is reflected in the LIBOR Rate) and (taking into consideration such Lender's or
such corporation's or other entity's policies with respect to capital adequacy)
determines that the amount of such capital is increased as a consequence of its
Commitments, loans, credits or obligations under this Agreement, then, within
fifteen (15) days following written demand therefor by such Lender to the
Borrower Representative through the Agent, the Borrowers shall pay to such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender for such increase.
4.4 Funding Losses. The Borrowers shall reimburse each Lender and hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of:
(a) the failure of the Borrowers to make on a timely basis any payment of
principal of any LIBOR Rate Loan;
(b) the failure of the Borrowers to borrow a LIBOR Rate Loan, continue a LIBOR
Rate Loan or convert a Loan into a LIBOR Rate Loan after the Borrower
Representative has given (or is deemed to have given) a Notice of Borrowing or a
Notice of Continuation/Conversion; or
(c) the prepayment or other payment (including after acceleration
thereof) of any LIBOR Rate Loans on a day that is not the last day of the
relevant Interest Period;
including without limitation any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its LIBOR Rate Loans or from
fees payable to terminate the deposits from which such funds were obtained. At
the election of any Lender, and without limiting the generality of the
foregoing, but without duplication, such compensation on account of losses may
include an amount equal to the excess of (i) the interest that would have been
received from the Borrowers under this Agreement on any amounts to be reemployed
during an Interest Period or its remaining portion over (ii) the interest
component of the return that such Lender determines it could have obtained had
it placed such amount on deposit in the interbank market for the relevant
currency selected by it for a period equal to such Interest Period, or term, or
any remaining portion thereof.
4.5 Inability to Determine Rates. If, prior to the first day of any Interest
Period, the Agent determines that for any reason adequate and reasonable means
do not exist for determining the LIBOR Rate for any requested Interest Period
with respect to a proposed LIBOR Rate Loan, or that the LIBOR Rate for any
requested Interest Period with respect to a proposed LIBOR Rate Loan does not
adequately and fairly reflect the cost to the Lenders of funding such Loan, the
Agent will promptly so notify the Borrower Representative and each Lender.
Thereafter, the obligation of the Lenders to make or maintain LIBOR Rate Loans
hereunder shall be suspended until the Agent revokes such notice in writing.
Upon receipt of such notice, the Borrower Representative may revoke any Notice
of Borrowing or Notice of Continuation/Conversion then submitted by it. If the
Borrower Representative does not revoke such Notice, the Lenders shall make,
convert or continue the Loans, as proposed by the Borrower Representative, in
the amount specified in the applicable notice submitted by the Borrower
Representative, but such Loans shall be made, converted or continued as Base
Rate Loans instead of LIBOR Rate Loans.
4.6 Certificates of Agent. If any Lender claims reimbursement or compensation
under this Article 4, Agent shall determine the amount thereof and shall
promptly deliver to the Borrower Representative (with a copy to the affected
Lender) a certificate setting forth in reasonable detail the computation of any
amount payable to the affected Lender, and such certificate shall be conclusive
and binding on the Borrowers in the absence of manifest error.
4.7 Survival. The agreements and obligations of the Borrowers in this Article 4
shall be joint and several and shall survive the payment of all other
Obligations. 4.8 Affected Lenders. Within 15 days after receipt by the Borrower
Representative of written notice and demand from any Lender (an "Affected
Lender") demanding payment of additional amounts or increased costs as provided
in Sections 4.1 or 4.3, or exercising its rights under Section 4.2, the Borrower
Representative may, at its option, notify the Agent and such Affected Lender of
its intention to replace the Affected Lender. So long as no Event of Default has
occurred and is continuing, the Borrower, with the consent of the Agent, may
obtain, at the Borrowers' expense, a replacement Lender ("Replacement Lender")
for the Affected Lender, which Replacement Lender shall be reasonably
satisfactory to the Agent. If the Borrower obtains a Replacement Lender within
90 days following notice of its intention to do so, the Affected Lender shall
sell and assign its Loans and Commitments to such Replacement Lender for an
amount equal to the principal balance of all Loans held by the Affected Lender
and all accrued interest and fees with respect thereto through the date of such
sale; provided, that the Borrowers shall have reimbursed such Affected Lender
for the additional amounts or increased costs that it is entitled to receive
under this Agreement through the date of such sale and assignment.
Notwithstanding the foregoing, the Borrower Representative shall not have the
right to obtain a Replacement Lender if the Affected Lender rescinds its demand
for increased costs or additional amounts, or the exercise of its rights under
Section 4.2, within 15 days following its receipt of the Borrower
Representative's notice of intention to replace such Affected Lender.
Furthermore, if the Borrower Representative gives a notice of intention to
replace and does not so replace such Affected Lender within 90 days thereafter,
the Borrower Representative's rights under this Section 4.8 shall terminate and
the Borrowers shall promptly pay all increased costs or additional amounts
demanded by such Affected Lender pursuant to Sections 4.1 and 4.3.
ARTICLE 5
BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES
5.1 Books and Records. The Borrowers shall, and shall cause their respective
Subsidiaries to, maintain, at all times, a system of accounting and keep such
correct and complete books, records and accounts as may be required or necessary
to permit the preparation of Financial Statements in accordance with GAAP.
5.2 Financial Information. The Borrowers shall promptly furnish to each Lender,
all such financial information as the Agent shall reasonably request. Without
limiting the foregoing, the Borrowers will furnish to the Agent, in sufficient
copies for distribution by the Agent to each Lender, the following:
(a) As soon as available, but in any event not later than one hundred (100) days
after the close of each Fiscal Year, consolidated audited balance sheets, and
income statements, cash flow statements and changes in stockholders' equity for
the Company and its consolidated Subsidiaries for such Fiscal Year, and the
accompanying notes thereto, setting forth in each case in comparative form
figures for the previous Fiscal Year, all in reasonable detail, fairly
presenting in all material respects the financial position and the results of
operations of the Company and its consolidated Subsidiaries as at the date
thereof and for the Fiscal Year then ended, and prepared in accordance with
GAAP. Such statements shall be examined in accordance with generally accepted
auditing standards by Xxxxxx Xxxxxxxx LLP or other independent certified public
accountants selected by the Company and reasonably satisfactory to the Agent,
and accompanied by a report of such accountants on such statements, which report
shall be unqualified as to scope of audit. The Company, simultaneously with
retaining such independent public accountants to conduct such annual audit,
shall send a letter to such accountants, with a copy to the Agent and the
Lenders, notifying such accountants that one of the primary purposes for
retaining such accountants' services and having audited financial statements
prepared by them is for use by the Agent and the Lenders.
(b) As soon as available, but in any event not later than thirty (30) days after
the end of each month, the monthly financial information required to be provided
by the Borrowers to the Bankruptcy Court. The Borrower Representative, on behalf
of the Borrowers, shall certify by a certificate signed by a Responsible Officer
that all such statements are fairly stated in all material respects, subject to
normal year-end adjustments.
(c) As soon as available, but in any event not later than fifty-five (55) days
after the end of each of the first three fiscal quarters of each Fiscal Year,
consolidated unaudited balance sheets of the Company and its consolidated
Subsidiaries as at the end of such fiscal quarter, and consolidated unaudited
income statements and cash flow statements for the Company and its consolidated
Subsidiaries for such fiscal quarter and for the period from the beginning of
the Fiscal Year to the end of such fiscal quarter, all in reasonable detail,
fairly presenting in all material respects the financial position and results of
operations of the Company and its consolidated Subsidiaries as at the date
thereof and for such periods, and, in each case, in comparable form, figures for
the corresponding period in the prior Fiscal Year, and prepared in accordance
with GAAP (except for the absence of footnotes and subject to normal year-end
adjustments) applied consistently with the audited Financial Statements required
to be delivered pursuant to Section 5.2(a). The Borrower Representative, on
behalf of the Borrowers, shall certify by a certificate signed by its chief
financial officer that all such statements have been prepared in accordance with
GAAP (except for the absence of footnotes and subject to normal year-end
adjustments) and present fairly in all material respects the financial position
of the Company and its consolidated Subsidiaries as at the dates thereof and the
results of operations of the Company and its consolidated Subsidiaries for the
periods then ended, subject to normal year-end adjustments.
(d) With each of the audited annual Financial Statements delivered pursuant to
Section 5.2(a), a certificate of the independent certified public accountants
that examined such statement to the effect that they have reviewed and are
familiar with this Agreement and that, in examining such Financial Statements,
they did not become aware of any fact or condition which then constituted a
Default or Event of Default with respect to the financial covenant set forth in
Section 7.21, except for those, if any, described in reasonable detail in such
certificate.
(e) With each of the annual audited Financial Statements delivered pursuant to
Section 5.2(a), and with each of the quarterly unaudited Financial Statements
delivered pursuant to Section 5.2(c), (1) a certificate of a Responsible Officer
setting forth in reasonable detail the calculations required to establish that
the Borrowers were in compliance with the covenant set forth in Section 7.21
during the period covered in such Financial Statements and as at the end thereof
and (2) a copy of management's discussion and analysis of such Financial
Statements contained in the Company's Form 10-K Annual Report or Form 10-Q
Quarterly Report filed with the Securities and Exchange Commission with respect
to such Fiscal Year or fiscal quarter, as applicable. With each of the monthly
Financial Statements delivered pursuant to Section 5.2(b), and with each of the
quarterly unaudited Financial Statements delivered pursuant to Section 5.2(c), a
certificate of a Responsible Officer stating that, except as explained in
reasonable detail in such certificate, no Default or Event of Default then
exists or existed during the period covered by the Financial Statements for such
month or fiscal quarter, as applicable. If such certificate discloses that a
Default or Event of Default existed or exists, such certificate shall set forth
what action the Borrowers have taken or propose to take with respect thereto.
(f) Not less than thirty (30) days after the beginning of each Fiscal Year, an
annual projected budget (to include projected consolidated balance sheets,
income statements and cash flow statements) for the Company and its consolidated
Subsidiaries as at the end of and for each month of such Fiscal Year.
(g) Promptly after filing with the PBGC and the IRS, a copy of each annual
report or other filing filed with respect to each Pension Plan of any Borrower.
(h) Promptly upon the filing thereof, copies of all reports, if any, filed by
the Company or any of its consolidated Subsidiaries with the Securities and
Exchange Commission under the Exchange Act, and all reports, notices, or
statements sent by the Company or any of its consolidated Subsidiaries to the
holders of any equity interests of the Company.
(i) Promptly after any Borrower's receipt thereof, a copy of all management
letters prepared for any Borrower by any independent certified public
accountants of any Borrower.
(j) Promptly after transmittal thereof, copies of any and all proxy statements,
financial statements, and reports which the Company makes available to its
shareholders.
(k) (i) On the date hereof, a Borrowing Base Certificate as of September 30,
2000 (but giving effect to the repayment in full of the accounts receivable
securitization facility of certain of the Borrowers with Alpine Securitization
Corp., which has been repaid in full and terminated prior to the Closing Date)
and (ii) thereafter, within fifteen (15) Business Days after the end of each
month, a Borrowing Base Certificate as of the last day of such month.
(l) The following information at the following times (in form reasonably
satisfactory to the Agent): (i) together with each Borrowing Base Certificate
delivered after the date hereof pursuant to Section 5.2(k), (1) a schedule
summarizing the Borrowers' Accounts created, credits given, cash collected and
other adjustments to Accounts since the last such schedule, (2) summary agings
of the Borrowers' Accounts, together with a reconciliation to the corresponding
Borrowing Base and to the Borrowers' general ledgers, (3) a report of
contra-accounts (or, if requested by the Agent, a summary aging of the
Borrowers' accounts payable), (4) Consolidation Ledgers of Inventory by category
and location, together with a reconciliation to the corresponding Borrowing Base
and to the Borrowers' general ledgers; (ii) upon request by the Agent, a
statement of the balance of each of the intercompany Accounts; (iii) such other
reports as to the Accounts and Inventory of the Borrowers as the Agent shall
reasonably request from time to time; and (iv) with the delivery of each of the
foregoing, a certificate of the Borrower Representative executed by a
Responsible Officer certifying as to the accuracy and completeness of the
foregoing.
(m) Such additional information as the Agent and/or any Lender may from time to
time reasonably request regarding the financial and business affairs of the
Company or any Subsidiary.
5.3 Notices to the Lenders. Promptly upon a Responsible Officer becoming aware
thereof, the Borrowers shall notify the Agent and the Lenders in writing of the
following matters:
(a) any Default or Event of Default;
(b) the commencement by the holder of any capital stock of any Other Subsidiary
or the holder of any Debt of any Other Subsidiary in a face amount in excess of
$50,000,000 of any enforcement action because of an asserted default or
non-compliance;
(c) any pending or threatened action, suit, or proceeding, by any Person, or any
pending or threatened investigation by a Governmental Authority, which would
reasonably be expected to have a Material Adverse Effect; or the rendering of
any judgment against one or more of the Borrowers in any action, suit or
proceeding awarding damages in excess of $2,000,000;
(d) any pending strike, work stoppage, unfair labor practice claim, or other
labor dispute affecting any Borrower or any Other Subsidiary in a manner which
would reasonably be expected to have a Material Adverse Effect;
(e) receipt of any notice of any violation of any law, statute, regulation, or
ordinance of a Governmental Authority affecting any Borrower or any Other
Subsidiary which would reasonably be expected to have a Material Adverse Effect;
(f) any notice of any violation by any Borrower or any Other Subsidiary of any
Environmental Law which would reasonably be expected to have a Material Adverse
Effect or that any Governmental Authority has asserted in writing that any
Borrower or any Other Subsidiary is not in compliance with any Environmental Law
or is investigating any Borrower's or such Other Subsidiary's compliance
therewith which noncompliance would reasonably be expected to have a Material
Adverse Effect;
(g) any written notice that any Borrower or any Other Subsidiary is or may be
liable to any Person as a result of the Release or threatened Release of any
Contaminant or that any Borrower or any Other Subsidiary is subject to
investigation by any Governmental Authority evaluating whether any remedial
action is needed to respond to the Release or threatened Release of any
Contaminant which, in either case, is reasonably likely to have a Material
Adverse Effect;
(h) any written notice of the imposition of any Environmental Lien
against any property of any Borrower or, if reasonably likely to have a Material
Adverse Effect, any Other Subsidiary;
(i) an ERISA Event or a prohibited transaction (as defined in Sections 406 of
ERISA and 4975 of the Code) has occurred with respect to a Pension Plan, and,
when known, any action taken or threatened by the IRS, the DOL or the PBGC with
respect thereto, which would reasonably be expected to have a Material Adverse
Affect;
(j) in the event that such filing reflects a significant change with respect to
the matters covered thereby, within three (3) Business Days after the filing
thereof with the PBGC, the DOL or the IRS, as applicable, copies of the
following: (i) each annual report (form 5500 series), including Schedule B
thereto, filed with the PBGC, the DOL or the IRS with respect to each Pension
Plan, (ii) a copy of each funding waiver request filed with the PBGC, the DOL or
the IRS with respect to any Pension Plan and all communications received by any
Borrower or any ERISA Affiliate from the PBGC, the DOL or the IRS with respect
to such request, and (iii) a copy of each other filing or notice filed with the
PBGC, the DOL or the IRS, with respect to each Pension Plan by any Borrower or
any ERISA Affiliate;
(k) copies of the following: (i) any notices of the PBGC's intention to
terminate a Plan or to have a trustee appointed to administer such Plan; (ii)
any determination letter from the IRS regarding the qualification of a Plan
under Section 401(a) of the Code; or (iii) any notice from a Multi-employer Plan
regarding the imposition of withdrawal liability;
(l) (i) any changes in the benefits of any existing Plan which increase any
Borrower's annual normal or prior service costs with respect thereto by an
amount in excess of $5,000,000, or the establishment of any new Pension Plan or
the commencement of contributions to any Pension Plan to which any Borrower or
any ERISA Affiliate was not previously contributing; or (ii) any failure by any
Borrower or any ERISA Affiliate to make a required installment or any other
required payment under Section 412 of the Code on or before the due date for
such installment or payment; or
(m) (i) a Multi-employer Plan has been or will be terminated; (ii) the
administrator or plan sponsor of a Multi-employer Plan intends to terminate a
Multi-employer Plan; or (iii) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate a Multi-employer Plan.
Each notice given under this Section shall describe the
subject matter thereof in reasonable detail, and shall set forth the action that
any Borrower, any Other Subsidiary, or any ERISA Affiliate, as applicable, has
taken or proposes to take with respect thereto.
ARTICLE 6
GENERAL WARRANTIES AND REPRESENTATIONS
Each Borrower jointly and severally warrants and represents to
the Agent and the Lenders that except as hereafter disclosed to and accepted by
the Agent and the Required Lenders in writing: 6.1 Authorization, Validity, and
Enforceability of this Agreement and the Loan Documents. Subject to the entry by
the Bankruptcy Court of the Final Order, (a) each Borrower has the power and
authority to execute, deliver and perform this Agreement and the other Loan
Documents to which it is a party and to incur the Obligations, (b) each Borrower
has taken all necessary action to authorize its execution, delivery, and
performance of this Agreement and the other Loan Documents to which it is a
party; (c) this Agreement and the other Loan Documents to which it is a party
have been duly executed and delivered by each Borrower, and constitute the
legal, valid and binding obligations of such Borrower, enforceable against it in
accordance with their respective terms and the terms of the Final Order, and (d)
each Borrower's execution, delivery, and performance of this Agreement and the
other Loan Documents to which it is a party do not and will not (i) result in
the imposition of any Lien upon the property of such Borrower, by reason of the
terms of (1) any contract, mortgage, lease, agreement, indenture, or instrument
to which such Borrower is a party or which is binding upon it (including any of
the foregoing entered into after the Filing Date), (2) any Requirement of Law
applicable to such Borrower, or (3) the certificate or articles of incorporation
or by-laws or the limited liability company or limited partnership agreement of
such Borrower or (ii) conflict with, or constitute a violation of (1) any
contract, mortgage, lease, agreement, indenture, or instrument to which such
Borrower is a party or which is binding upon it and that was entered into after
the Filing Date, except where such conflict, violation or breach would not
reasonably be expected to have a Material Adverse Effect, (2) any Requirement of
Law applicable to such Borrower, except where such conflict, violation or breach
would not reasonably be expected to have a Material Adverse Effect or (3) the
certificate or articles of incorporation or by-laws or the limited liability
company or limited partnership agreement of such Borrower.
6.2 Borrowers' Organization and Qualification of Borrowers. Each Borrower (a) is
duly organized or incorporated and validly existing in good standing under the
laws of the state of its organization or incorporation, (b) is qualified to do
business and is in good standing in the jurisdictions set forth on Schedule 6.2
applicable to such Borrower which are the only jurisdictions in which the
failure to so qualify or be in good standing would reasonably be expected to
have a Material Adverse Effect and (c) has all requisite power and authority to
conduct its business and to own its property, except where the failure to have
such power and authority would not reasonably be expected to have a Material
Adverse Effect. Schedule 6.4 is a correct and complete list of the name and
relationship to the Company of each of the Borrowers which is a Subsidiary.
6.3 [Intentionally Omitted.]
----------------------
6.4 Other Subsidiaries and Affiliates. As of the Closing Date, Schedule 6.4 is a
correct and complete list of the name and relationship to the Company of each of
the Other Subsidiaries and other Affiliates. Each Other Subsidiary is (a) duly
incorporated or organized and validly existing in good standing under the laws
of its state of incorporation or organization set forth on Schedule 6.4, except
where the failure to be validly existing would not reasonably be expected to
have a Material Adverse Effect and (b) qualified to do business and in good
standing in each jurisdiction in which the failure to so qualify or be in good
standing would reasonably be expected to have a Material Adverse Effect and (c)
has all requisite power and authority to conduct its business and own its
property, except where the failure to have such power and authority would not
reasonably be expected to have a Material Adverse Effect.
6.5 Financial Statements and Projections.
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(a) The Borrower Representative has delivered to the Agent and the Lenders the
audited balance sheet and related statements of income, retained earnings, cash
flows, and changes in stockholders equity for the Company and its consolidated
Subsidiaries as of December 31, 1999 and for the Fiscal Year then ended,
accompanied by the report thereon of the Company's independent certified public
accountants, Xxxxxx Xxxxxxxx LLP. The Borrower Representative has also delivered
to the Agent and the Lenders the unaudited balance sheet and related statements
of income and cash flows for the Company and its consolidated Subsidiaries as of
September 30, 2000. Such financial statements are attached hereto as Exhibit C.
All such financial statements have been prepared in accordance with GAAP (except
for the absence of footnotes in the case of the foregoing unaudited financial
statements) and present accurately and fairly in all material respects the
consolidated financial position of the Company and its consolidated Subsidiaries
as at the dates thereof and the consolidated results of operations of the
Company and its consolidated Subsidiaries for the periods then ended, subject to
normal year-end adjustments.
(b) The Latest Projections when submitted to the Lenders as required herein
represent the Borrowers' good faith estimate of the future financial performance
of the Company and its consolidated Subsidiaries for the periods set forth
therein. The Latest Projections have been prepared on the basis of the
assumptions set forth therein, which Borrowers believe are fair and reasonable
in light of current and reasonably foreseeable business conditions at the time
submitted to the Lenders, it being understood that nothing contained in this
Section 6.5(b) shall constitute a representation or warranty of the future
financial performance or results of operations of the Company or any of its
Subsidiaries.
6.6 [Intentionally omitted.]
---------------------
6.7 Debt. As of the Closing Date, no Borrower has any Debt except
(a) the Obligations, and (b) Debt described on Schedule 6.7.
6.8 [Intentionally omitted.]
---------------------
6.9 Title to Property; Liens. Each Borrower has good title in fee simple to all
material Real Estate owned by such Borrower, and valid leasehold interests in
all material Real Estate leased by such Borrower, and each Borrower has good
title to all of its other material property (including the assets reflected on
the latest Financial Statements delivered to the Agent and the Lenders, except
as disposed of in the ordinary course of business since the date thereof or as
otherwise permitted under this Agreement), free of all Liens except Liens
permitted under Section 7.17.
6.10 Proprietary Rights. To the best of each Borrower's knowledge, none of the
Proprietary Rights of any Borrower or any Other Subsidiary infringes on or
conflicts with any other Person's property, and no other Person's property
infringes on or conflicts with the Proprietary Rights of any Borrower or any
Other Subsidiary, in any case where such infringement or conflict would
reasonably be expected to have a Material Adverse Effect.
6.11 [Intentionally Omitted.]
---------------------
6.12 Litigation. There is no pending, or to the best of any Borrower's knowledge
threatened, action, suit, proceeding, or counterclaim against the Company or any
of its consolidated Subsidiaries before any Governmental Authority or arbitrator
or panels of arbitrators (collectively, "Litigation"), which would reasonably be
expected to have a Material Adverse Effect. Schedule 6.12 sets forth, as of the
date hereof, (a) a summary of all material pending, and to the knowledge of the
Borrowers, threatened, Litigation against any Borrower that involves any
material risk of a Material Adverse Effect and (b) a schedule of all outstanding
and unpaid judgments against the Borrowers.
6.13 [Intentionally omitted.]
---------------------
6.14 Environmental Laws. Without limiting the generality of Section 6.15, in the
ordinary course of its business the Company conducts an ongoing review of the
effect of Environmental Laws on the business, operations and properties of the
Company and its Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up, remediation or closure of
properties presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental protection
standards imposed by law or as a condition of any license, permit or contract,
any related constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or change in the
nature of operations conducted thereat, and any actual or potential liabilities
to third parties, including employees, and any related costs and expenses). On
the basis of this review, the Company has reasonably concluded that
Environmental Laws would not reasonably be expected to have a Material Adverse
Effect.
6.15 No Violation of Law. No Borrower nor any Other Subsidiary is in violation
of any law, statute, regulation, ordinance, judgment, order, or decree
applicable to it which violation would reasonably be expected to have a Material
Adverse Effect.
6.16 No Default. No Borrower nor any Other Subsidiary is in default with respect
to any note, indenture, loan agreement, mortgage, lease, deed, or other
agreement to which such Borrower or such Other Subsidiary is a party or by which
it is bound, which default would reasonably be expected to have a Material
Adverse Effect.
6.17 ERISA Compliance. Except as specifically disclosed in Schedule 6.17 and
except to the extent that any of the following would not reasonably be expected
to have a Material Adverse Effect:
(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 of any Borrower's knowledge,
nothing has occurred which would cause the loss of such qualification. Each
Borrower 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 of the Borrowers' knowledge, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan which has resulted or would reasonably be expected to result
in a Material Adverse Effect. There has been no prohibited transaction (as
defined in Section 406 of ERISA and 4975 of the Code) or violation of the
fiduciary responsibility rules under ERISA with respect to any Plan which has
resulted or would 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) no Borrower 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) no Borrower 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 Multi-employer Plan; and (v) no Borrower nor any ERISA Affiliate has
engaged in a transaction that would be subject to Section 4069 or 4212(c) of
ERISA.
6.18 Taxes. Each Borrower and each Other Subsidiary have filed all federal and
other tax returns and reports required to be filed, and have paid all federal
and other taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable other than (a) in the case of the Borrowers, such taxes, assessments,
fees and other governmental charges (i) the payment of which has been stayed as
a result of the Borrowers' status as debtors-in-possession in the Bankruptcy
Cases or by an order of the Bankruptcy Court, (ii) that are not yet delinquent
or (iii) that are being contested in good faith and for which adequate reserves
have been established by the Borrowers in accordance with GAAP and (b) in the
case of the Other Subsidiaries, such taxes, assessments fees and other charges
the nonpayment of which would not reasonably be expected to have a Material
Adverse Effect.
6.19 Regulated Entities. No Borrower and no Person controlling any Borrower, is
an "Investment Company" within the meaning of the Investment Company Act of
1940. No Borrower is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any
state public utilities code or law, or any other federal or state statute or
regulation limiting its ability to incur indebtedness.
6.20 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be
used solely for working capital and other general corporate purposes. No
Borrower nor any Other Subsidiary is engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock. No part of the proceeds of any Borrowing will be used in
violation of Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time and in no event shall Margin Stock
constitute 25% or more of the assets of the Company and its consolidated
Subsidiaries.
6.21 Copyrights, Patents, Trademarks and Licenses, etc. Each Borrower and each
Other Subsidiary owns or is licensed or otherwise has the right to use all of
the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, licenses, rights of way, authorizations and other rights that are
reasonably necessary for the operation of its businesses, without conflict with
the rights of any other Person, except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect. To the best of the
Borrowers' knowledge, no slogan or other advertising device, product, process,
method, substance, part or other material now employed, by any Borrower or any
Other Subsidiary infringes upon any rights held by any other Person, except for
such claims and infringements that would not reasonably be expected to have a
Material Adverse Effect. No claim or litigation regarding any of the foregoing
is pending or, to the knowledge of the Borrowers, threatened, which, in either
case, would reasonably be expected to have a Material Adverse Effect.
6.22 Full Disclosure. All data, certificates, reports, statements, documents and
other written information (excluding any projections or other forward-looking
information) furnished to the Agent or any Lender pursuant to any provision of
this Agreement or any other Loan Document or in connection with or pursuant to
any amendment or modification of, or waiver under, this Agreement or any other
Loan Document, shall, at the time the same are so furnished, but in the case of
information dated as of a prior date, as of such date, (x) in the case of any
such prepared in the ordinary course of business, be complete and correct in the
light of the purpose prepared, and (y) in the case of any such requested by the
Agent or any Lender, be complete and correct in all material respects to the
extent necessary to give the Agent or such Lender true and accurate knowledge of
the subject matter thereof, and the furnishing of the same to the Agent or any
Lender shall constitute a representation and warranty by the applicable Borrower
made on the date the same are furnished to the Agent or such Lender to the
effect specified in clause (x) or (y), as applicable. The foregoing shall not be
in limitation of any other representation or warranty of the Borrowers contained
herein or in any other Loan Document.
6.23 Governmental Authorization. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority or
other Person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Borrower of this Agreement or any
other Loan Document, except the Bankruptcy Court and notices to creditors
required by the Bankruptcy Code.
6.24 Subsidiary Borrowers. As of the Closing Date, the Subsidiaries that are
Borrowers constitute all of the Subsidiaries of the Company incorporated or
organized under the laws of any state in the United States of America ("Domestic
Subsidiaries"), other than those Domestic Subsidiaries listed on Schedule 6.24
hereto.
ARTICLE 7
AFFIRMATIVE AND NEGATIVE COVENANTS
Each Borrower jointly and severally covenants to the Agent and
each Lender that so long as any of the Obligations remain outstanding or this
Agreement is in effect:
7.1 Taxes and Other Obligations. Subject to the Bankruptcy Code, each Borrower
shall, and the Company shall cause Other Subsidiary to, (a) file when due
(subject to any applicable grace periods) all tax returns and other reports
which it is required to file; (b) pay, or provide for the payment, when due
(subject to any applicable grace periods), of all taxes, fees, assessments and
other governmental charges against it or upon its property arising after the
Petition Date, and make all required withholding and other tax deposits, and
establish adequate reserves for the payment of all such items; and (c) pay when
due all Debt owed by it (in the case of any Borrower, arising after the Petition
Date) and all claims of materialmen, mechanics, carriers, warehousemen,
landlords, processors and other like Persons (in the case of any Borrower,
arising after the Petition Date), and all other indebtedness owed by it (in the
case of any Borrower, arising after the Petition Date) and perform and discharge
in a timely manner all other obligations undertaken by it (in the case of any
Borrower, arising after the Petition Date); provided, however, no Borrower need
pay any of the foregoing (i) it is contesting in good faith by appropriate
proceedings diligently pursued, (ii) as to which such Borrower or such Other
Subsidiary, as the case may be, has established proper reserves as required
under GAAP, and (iii) the nonpayment of which does not result in the imposition
of a Lien (other than a Permitted Lien); provided, further, that no Other
Subsidiary need pay any of the foregoing where failure to pay such obligation
would not reasonably be expected to have a Material Adverse Effect.
7.2 Legal Existence and Good Standing. Except as permitted under Section 7.8,
each Borrower shall, and the Company shall cause each Other Subsidiary to,
maintain its legal existence and its qualification and good standing in all
jurisdictions in which the failure to maintain such existence and qualification
or good standing would reasonably be expected to have a Material Adverse Effect.
7.3 Compliance with Law and Agreements; Maintenance of Licenses. Each Borrower
shall comply, and the Company shall cause each Other 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 and all Environmental Laws), except where the failure to do so
would not reasonably be expected to have a Material Adverse Effect. Each
Borrower shall, and the Company shall cause each Other Subsidiary to, obtain and
maintain all licenses, permits, franchises, and governmental authorizations
necessary to own its property and to conduct its business as conducted on the
Closing Date, except where the failure to do so would not reasonably be expected
to have a Material Adverse Effect. No Borrower shall modify, amend or alter its
certificate or articles of incorporation, or its limited liability company
operating agreement or limited partnership agreement, as applicable, other than
in a manner which does not adversely affect the rights of the Lenders or the
Agent in any material respect.
7.4 Maintenance of Property; Inspection of Property.
-----------------------------------------------
(a) Each Borrower shall, and the Company shall cause each Other Subsidiary to,
maintain all of its property necessary and useful in the conduct of its
business, in good operating condition and repair, ordinary wear and tear
excepted, except where the failure to do so would not reasonably be expected to
have a Material Adverse Effect.
(b) Each Borrower, shall, permit representatives and independent contractors of
the Agent (at the expense of the Borrowers not to exceed four (4) times per year
unless an Event of Default has occurred and is continuing) to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make abstracts therefrom or copies (to the extent reasonably
required by the Agent) and to discuss its affairs, finances and accounts with
its officers and independent public accountants, at such reasonable times during
normal business hours and as soon as may be reasonably desired, upon reasonable
advance notice to the Borrower Representative. The Borrower Representative may
elect to have officers or other management employees accompany the Agent on such
inspections and/or be present for such discussions.
7.5 Insurance. Each Borrower shall maintain, and the Company shall cause each
Other Subsidiary to maintain, with financially sound and reputable insurers
having a rating of at least A+ or better by Best Rating Guide, insurance against
such risks and in such amounts as are customary for Persons engaged in the same
or similar business or as may be required by applicable law or, in the case of
the Borrowers, as may reasonably requested by the Required Lenders.
7.6 Environmental Laws. Each Borrower shall, and the Company shall cause each
Other Subsidiary to, conduct its business in compliance in all material respects
with all Environmental Laws applicable to it, including those relating to the
generation, handling, use, storage, and disposal of any Contaminant, except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect. Each Borrower shall, and the Company shall cause each Other
Subsidiary to, take prompt and appropriate action to respond to any
non-compliance with Environmental Laws, except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect.
7.7 Compliance with ERISA. Except as required under the Bankruptcy Code or an
order of the Bankruptcy Court, or except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect, each Borrower shall,
and the Company shall cause each of its ERISA Affiliates to: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law; (b) cause each Plan which is
qualified under Section 401(a) of the Code to maintain such qualification; (c)
make all required contributions to any Plan subject to Section 412 of the Code;
(d) not engage in a prohibited transaction (as defined in Sections 406 of ERISA
and 4975 of the Code) or violation of the fiduciary responsibility rules with
respect to any Plan; and (e) not engage in a transaction that would be subject
to Section 4069 or 4212(c) of ERISA.
7.8 Mergers, Consolidations or Sales. No Borrower shall, nor shall the Company
cause or permit any Other Subsidiary to, enter into any transaction of merger,
reorganization, or consolidation, or transfer, sell, assign, lease, or otherwise
dispose of all or any part of its property, or wind up, liquidate or dissolve,
or agree to do any of the foregoing (or, in the case of any Borrower, apply to
the Bankruptcy Court for authority to do so without the Agent's prior written
consent, provided that any application consented to by the Agent shall be
abandoned and withdrawn at the request of the Agent or if the consent of the
Lenders required hereunder to the taking of the action(s) to which such
application relates is not obtained), except (i) for sales of Inventory in the
ordinary course of its business, (ii) for sales or other dispositions of
property in the ordinary course of business that are surplus, worn out, obsolete
or no longer useable by any Borrower or Other Subsidiary, (iii) for any merger
or consolidation of any Borrower with any other Borrower or of any Other
Subsidiary with any Other Subsidiary or other Person (so long as such merger or
consolidation of any Other Subsidiary with such other Person would not
constitute a Restricted Investment), (iv) for any transfer, sale, assignment,
lease or other disposition of all or any part of its assets (upon voluntary
liquidation or otherwise) by any Borrower to any other Borrower or by any Other
Subsidiary to any Other Subsidiary; (v) the sale or compromise of past due
accounts receivable in connection with the collection thereof in the ordinary
course of business; (vi) leases or subleases (or assignments of leases or
subleases) of fixed assets or licenses or sublicenses (or assignments of
licenses or sublicenses) of intangibles, in either case in the ordinary course
of business; (vii) dispositions of Cash Equivalents (and, in the case of the
Fibreboard Settlement Trust, dispositions of Investments by the Fibreboard
Settlement Trust) in the ordinary course of business at fair market value and on
commercially reasonable terms; (viii) the making of Investments which are not
Restricted Investments, if making such Investments would otherwise be deemed a
sale or other disposition subject to this Section 7.8, and (ix) sales of
Accounts (or of undivided interests therein) by Other Subsidiaries pursuant to
factoring arrangements entered into by such Other Subsidiaries, provided that
the aggregate outstanding Accounts (or undivided interests therein) subject to
such arrangements shall not exceed $35,000,000 at any time; (x) sales or other
dispositions of any asset not otherwise permitted under this Section 7.8 having
a book value at the time of disposition that represents a percentage of the
consolidated assets of the Company and its consolidated Subsidiaries at such
time that, when added together with all of the like percentages at the
respective times of disposition represented by the book values of all other
assets disposed of by the Company and its Subsidiaries since the Closing Date
does not exceed 10%, except that any asset leased by the Company or any such
Subsidiary shall cease to be deemed to have been disposed of for the purposes of
this Section at such time, if any, as such asset shall cease to be subject to
such lease and shall again be owned by the Company or any such Subsidiary free
of any leasehold interest or other Lien, except a Lien permitted under Section
7.17; provided that any sale or other disposition permitted under this clause
(x) shall not include any Accounts or Inventory of any Borrower unless (1) no
Default or Event of Default has occurred and is continuing or would result
therefrom, (2) such sale or other disposition is of a business unit of such
Borrower, (3) prior to such sale or other disposition, an updated Borrowing Base
Certificate is delivered by the Borrower Representative to the Agent giving
effect to such sale or other disposition and (4) either (A) after giving effect
to such sale or disposition, either Availability is at least $150,000,000 or
Borrowing Base Availability is at least $250,000,000 or (B) in the case of any
sale or disposition which does not satisfy the requirements of Clause (A), the
aggregate book value of all Accounts and Inventory included in any such sale or
disposition, or series of related sales and dispositions, does not exceed
$10,000,000, provided, that the aggregate book value of all Accounts and
Inventory included in sales and other dispositions following the Closing Date
and permitted under this clause (B) shall not exceed $50,000,000.
7.9 Distributions; Capital Change; Restricted Investments. No Borrower shall (i)
directly or indirectly declare or make, or incur any liability to make, any
Distribution, except (A) Distributions to any other Borrower and (B) the
acquisitions of shares of the Company's stock pursuant to any compensation or
benefit plan approved by the Bankruptcy Court, (ii) make any change in its
capital structure which would have a Material Adverse Effect or (iii) make any
Restricted Investment.
7.10 [Intentionally Omitted].
---------------------
7.11 Guaranties. No Borrower shall, nor shall the Company cause or permit any
Other Subsidiary to, make, issue, or become liable on (or, in the case of any
Borrower, apply to the Bankruptcy Court for authority to make, issue or become
liable on without the Agent's prior written consent, provided that any
application consented to by the Agent shall be abandoned and withdrawn at the
request of the Agent or if the consent of the Lenders required hereunder to the
taking of the action(s) to which such application relates is not obtained) any
Guaranty, except (a) Guaranties of the Obligations in favor of the Agent; (b)
Guaranties outstanding on the date hereof and listed on Schedule 6.7 and
including, in the case of the Other Subsidiaries, renewals. extensions and
refinancings of such Guaranties to the extent of the amount of such Guaranties
as of the date hereof; (c) Guaranties by any Other Subsidiary arising in the
ordinary course of business; (d) unsecured Guaranties by any Borrower of Debt or
other obligations of any Borrower other than Guaranties of Debt or other
obligations of any other Borrower existing on the Filing Date; (e) unsecured
Guaranties by any Borrower of Debt or other obligations of any Other Subsidiary
incurred in the ordinary course of business of such Other Subsidiary; provided,
that the aggregate amount of Debt or other obligations guarantied shall not
exceed at any time outstanding $50,000,000; (f) unsecured Guaranties by any
Borrower of (1) obligations of Affiliated Entities to manufacture and deliver
goods in the ordinary course of business and (2) obligations of Affiliated
Entities that are product warranties given in the ordinary course of business
with respect to such goods, or are in the nature of, and not exceeding in
general scope, product warranties that would otherwise be given in the ordinary
course of business with respect to such goods; provided, that the aggregate
amount of obligations guarantied pursuant to this clause (f) shall not exceed
$25,000,000; (g) Guaranties by any Other Subsidiary of Debt or other obligations
of any Affiliated Entity; and (h) additional Guaranties (which, in the case of
any Borrower shall be unsecured and shall exclude guaranties of Debt or other
obligations of the Borrowers existing on the Filing Date) not exceeding (1) in
the case of the Borrowers, together with, without duplication, the Debt of the
Borrowers permitted under Section 7.12(i)(1), $150,000,000 in aggregate
principal amount at any time outstanding and (2) in the case of the Other
Subsidiaries, together with, without duplication, the Debt of the Other
Subsidiaries permitted under Section 7.12(i)(2), $75,000,000 in the aggregate
principal amount at any time outstanding.
7.12 Debt. No Borrower shall, nor shall the Company cause or permit any Other
Subsidiary to, incur or maintain any Debt (or, in the case of any Borrower,
apply to the Bankruptcy Court for authority to do so without the Agent's prior
written consent; provided that any application consented to by the Agent shall
be abandoned and withdrawn at the request of the Agent or if the consent of the
Lenders required hereunder to the taking of the action(s) to which such
application relates is not obtained), other than: (a) the Obligations; (b) Debt
existing on the Closing Date and described on Schedule 6.7 and including, in the
case of Debt of the Other Subsidiaries, renewals, extensions and refinancings
thereof to the extent of the principal amount of such Debt as of the date
hereof; (c) Capital Leases of Equipment and purchase money secured Debt incurred
following the Closing Date to purchase Equipment provided that (i) in the case
of the Borrowers, Liens securing the same attach only to the Equipment acquired
by the incurrence of such Debt, and (ii) the aggregate amount of such Debt
(including Capital Leases) outstanding does not exceed $25,000,000 at any time
in the case of the Borrowers, and $10,000,000 at any time in the case of the
Other Subsidiaries; (d) Permitted Intercompany Debt; (e) Debt consisting of
Guaranties which are permitted by Section 7.11; (f) Debt arising pursuant to
Hedging Agreements entered into in the ordinary course of business; (g) Debt of
any entity existing at the time such entity is acquired by a Borrower or any
Other Subsidiary provided that such Debt shall not have been incurred in
contemplation of such acquisition and no Borrower shall guaranty or otherwise
assume such Debt; (h) Debt of Xxxxx Corning (India) Limited, an India company,
in an aggregate principal amount at any time not exceeding $80,000,000; and (i)
other Debt (which, in the case of any Borrower, shall be unsecured) not
exceeding (1) in the case of the Borrowers, together with, without duplication,
Guaranties by the Borrowers permitted under Section 7.11(h)(l), $150,000,000 in
aggregate principal amount at any time outstanding and (2) in the case of the
Other Subsidiaries, together with, without duplication, Guaranties by the Other
Subsidiaries permitted by Section 7.11(h)(2), $75,000,000 in the aggregate
principal amount at any time outstanding. The aggregate amount of lease payments
under synthetic leases entered into following the Closing Date shall not exceed
(a) $25,000,000 in the case of synthetic leases entered into by the Borrowers
and (b) $20,000,000 in the case of synthetic leases entered into by the Other
Subsidiaries.
7.13 Prepayment. No Borrower shall voluntarily prepay any Debt (or apply to the
Bankruptcy Court for authority to do so without the Agent's prior written
consent, provided that any application consented to by the Agent shall be
abandoned and withdrawn at the request of the Agent or if the consent of the
Lenders required hereunder to the taking of the action(s) to which such
application relates is not obtained), except (i) any Borrower may prepay the
Obligations in accordance with the terms of this Agreement, (ii) any Borrower
may prepay Debt of such Borrower to any other Borrower, (iii) any Borrower may
prepay Debt permitted hereunder: (a) from the proceeds of new Debt (other than
the Obligations) incurred to refinance such Debt and permitted hereunder to be
incurred, (b) under Capital Leases for property no longer used by the Borrowers
in connection with the settlement, termination or assignment of such Capital
Lease, (c) secured by assets in connection with any sale or other disposition of
such assets permitted hereunder to the extent such prepayment is financed with
the proceeds of such sale or disposition, or (d) consisting of Capital Leases as
long as such Capital Leases are paid in full in connection with any such
prepayment and such prepayment is made in connection with the sale of the
property subject to such Capital Lease, and (iv) the Company may prepay up to
$10,000,000 in prepetition indebtedness with respect to precious metals
synthetic leases between the Company, as lessee, and Xxxxxx Metals, Inc., as
lessor, in connection with the termination of all or a portion of the lessor's
interest in the precious metals subject to such leases.
7.14 Transactions with Affiliates. Except as set forth on Schedule 7.14 and
except as set forth below, no Borrower shall sell, transfer, distribute, or pay
any money or property, including, but not limited to, any fees or expenses of
any nature (including, but not limited to, any fees or expenses for management
services), to any Affiliate, or lend or advance money or property to any
Affiliate, or invest in (by capital contribution or otherwise) or purchase or
repurchase any stock or indebtedness, or any property, of any Affiliate, or
become liable on any Guaranty of the indebtedness, dividends, or other
obligations of any Affiliate, unless such transaction is (a) otherwise permitted
under this Agreement or (b) entered into in the ordinary course of business and
upon terms no less favorable to such Borrower than would be obtained in a
comparable arm's-length transaction with a third party who is not an Affiliate.
7.15 Investment Banking and Finder's Fees. The Borrowers shall defend and
indemnify the Agent and the Lenders against and hold them harmless from all
claims of any Person that any Borrower is obligated to pay to such Person for
any investment banking or similar or related fee, underwriter's fee, finder's
fee or broker's fee in connection with this Agreement, and all reasonable costs
and expenses (including reasonable attorneys' fees) incurred by the Agent and/or
any Lender in connection therewith.
7.16 Business Conducted. No Borrower shall, nor shall any Borrower cause or
permit any Other Subsidiary to, engage directly or indirectly in any line of
business other than the businesses in which the Company and its Subsidiaries are
engaged on the Closing Date and businesses related or similar thereto or entered
into in connection therewith.
7.17 Liens. No Borrower shall create, incur, assume, or permit to exist any Lien
on any property now owned or hereafter acquired by any of them, except (a)
Permitted Liens, (b) Liens, if any, in effect as of the Closing Date and
described in Schedule 6.7 securing Debt described in Schedule 6.7 and (c) Liens
securing Capital Leases and purchase money Debt permitted in Section 7.12(c).
7.18 [Intentionally Omitted.]
---------------------
7.19 [Intentionally Omitted.]
7.20 Fiscal Year. The Borrowers shall not change their Fiscal Year.
-----------
7.21 Consolidated EBITDA. The Company and its consolidated Subsidiaries shall
have Consolidated EBITDA of not less than the following amounts measured as of
the last day of each fiscal quarter for the following respective periods:
Period Consolidated EBITDA
------ -------------------
October 1, 2000 through December 31, 2000 $ 90,000,000
October 1, 2000 through March 31, 2001 $170,000,000
October 1, 2000 through June 30, 2001 $270,000,000
October 1, 2000 through September 30, 2001 $385,000,000
Fiscal Year ending December 31, 2001 $400,000,000
Trailing four fiscal quarters ending on March 31, 2002 $410,000,000
and on the last day of each fiscal quarter thereafter
7.22 [Intentionally Omitted.]
---------------------
7.23 Use of Proceeds. No Borrower shall, nor shall the Company cause or permit
any Other Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of any Borrower or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act or for any purpose other than
working capital and other general corporate purposes.
7.24 Further Assurances. Each Borrower shall execute and deliver, or cause to be
executed and delivered, to the Agent and/or the Lenders such documents and
agreements, and shall take or cause to be taken such actions, as the Agent or
any Lender may, from time to time, reasonably request to carry out the terms and
conditions of this Agreement and the other Loan Documents.
7.25 Section 364(c)(1) Superpriority Administrative Claim. (a) (a) Effective on
and after the date of the entry by the Bankruptcy Court of the Final Order,
notwithstanding any term to the contrary herein, in accordance with section
364(c)(1) and the Bankruptcy Code, the Obligations shall constitute claims (the
"Superpriority Administrative Claims") with priority in payment from the
Borrowers' assets, whether now existing or hereafter acquired, over any and all
unsecured pre-petition claims, all post-petition claims and all administrative
expenses of the kinds specified in, or arising or ordered under any sections of
the Bankruptcy Code, including, without limitation, sections 503(b), 105, 326,
328, 330, 331, 506(c), 507(a), 507(b), 546(c), 726 and 1112 of the Bankruptcy
Code, whether or not such claims or expenses may become secured by a judgment
lien or other non-consensual lien, levy or attachment, and the Superpriority
Administrative Claims shall at all times be senior to the rights of the
Borrowers, any Chapter 11 trustee, any Chapter 7 trustee, or any other creditor
(including, without limitation, post-petition vendors and other post-petition
creditors) in the Bankruptcy Cases or any subsequent proceedings under the
Bankruptcy Code, including, without limitation, any chapter 7 cases if any of
the Borrowers' cases are converted to cases under chapter 7 of the Bankruptcy
Code, subject only to the Carve-Out (as defined below), valid and unvoidable
liens or security interests to the extent and in the amounts existing as of the
commencement of the Bankruptcy Cases and Liens permitted under Section 7.17
hereof. No cost or expense of administration under sections 105, 364(c)(1),
503(b), 506(c), 507(b) of the Bankruptcy Code, any other section of the
Bankruptcy Code, or pursuant to any order of the Bankruptcy Court other than the
Final Order (whether entered prior to, on, or after the date of the Final
Order), shall be senior to, equal to, or pari passu with, the Superpriority
Administrative Claim of the Lenders arising out of the Obligations, whether or
not such claims or expenses may become secured by a judgment lien or other
non-consensual lien, levy or attachment (subject only to the Carve-Out). As long
as no unwaived Event of Default has occurred (each a "Carve-Out Event"), the
Borrowers shall be permitted to pay allowed unpaid professional fees and
disbursements as the same may be due and payable, and such payments shall not
reduce the Carve-Out.
(b) The Superpriority Administrative Claim referred to in clause (a) above shall
be subject only to (1) prior to the occurrence of a Carve-Out Event, the payment
of allowed unpaid professional fees and disbursements incurred by the Borrowers
and statutory committees appointed in the Bankruptcy Cases, (2) following the
occurrence and during the pendency of a Carve-Out Event, the payment of allowed
and unpaid professional fees and disbursements incurred after the occurrence and
during the pendency of a Carve-Out Event by the Borrowers and statutory
committees appointed in the Bankruptcy Cases in an aggregate amount not in
excess of $10,000,000, (3) the payment of fees pursuant to 28 U.S.C. ss.1930 and
fees payable to the clerk of the Bankruptcy Court and any agent thereof (the
amount under this clause(3), together with the amounts under clauses (1) and
(2),collectively the "Carve-Out") and (4) valid and unavoidable allowed liens or
security interests to the extent and in the amounts existing as of the
commencement of the Bankruptcy Cases and Liens permitted under Section 7.17.
7.26 Borrowers' Accounts.
-------------------
(a) The Borrowers hereby jointly and severally represent and warrant to the
Agent and the Lenders, with respect to the Accounts owned by each Borrower,
that, except as otherwise disclosed to the Agent: (i) each existing Account of
such Borrower represents, and each future Account will represent, a bona fide
sale or lease and delivery of goods by such Borrower or rendition of services by
such Borrower; (ii) each existing Account of such Borrower is, and each future
Account will be, for a liquidated amount payable by the Account Debtor thereon
on the terms set forth in the invoice therefor or in the schedule thereof
delivered to the Agent; (iii) no payment will be received with respect to any
Account, and no credit, discount, or extension, or agreement therefor will be
granted on any Account, except as reported to the Agent and the Lenders in
accordance with this Agreement; (iv) each copy of an invoice delivered to the
Agent by any Borrower will be a genuine copy of the original invoice sent to the
Account Debtor named therein; and (v) all goods described in any invoice
representing a sale of goods will have been delivered to the Account Debtor and
all services of the applicable Borrower described in each invoice will have been
performed.
(b) No Borrower shall re-date any invoice or sale or make sales on extended
dating beyond that which is customary in such Borrower's business or extend or
modify any Account owned by any Borrower. If any Borrower becomes aware of any
matter adversely affecting the collectibility of any Account owned by any
Borrower or the Account Debtor therefor involving an amount greater than
$2,000,000, including information regarding the Account Debtor's
creditworthiness, the Borrower Representative will promptly so advise the Agent.
(c) The Borrower Representative shall notify the Agent promptly of all disputes
and claims in excess of $2,000,000 with any Account Debtor of any Borrower, and
the Borrower Representative agrees to settle, contest, or adjust such dispute or
claim at no expense to the Agent or any Lender.
(d) If an Account Debtor of any Borrower returns any Inventory to such Borrower,
then the applicable Borrower shall promptly determine the reason for such return
and shall issue a credit memorandum to the Account Debtor in the appropriate
amount. Whenever any Inventory of any Borrower is returned, the related Account
shall be deemed ineligible to the extent of the amount owing by the Account
Debtor with respect to such returned Inventory.
7.27 Inventory; Records.
------------------
The Borrowers jointly and severally represent and warrant to
the Agent and the Lenders and agree with the Agent and the Lenders that, except
as otherwise disclosed to the Agent all of the Inventory owned by each Borrower
is and will be held for sale or lease, or to be furnished in connection with the
rendition of services, in the ordinary course of the applicable Borrower's
business, and is and will be fit for such purposes. Each Borrower will keep its
Inventory in good and marketable condition, except for damaged or defective
goods arising in the ordinary course of such Borrower's business. The Borrowers
agree that all Inventory produced by the Borrowers in the United States of
America will be produced in accordance with the Federal Fair Labor Standards Act
of 1938, as amended, and all rules, regulations, and orders thereunder.
ARTICLE 8
CONDITIONS OF LENDING
8.1 Conditions Precedent to Making of Initial Loans. The effectiveness of this
Agreement on the Closing Date is subject to the following conditions precedent
having been satisfied in a manner reasonably satisfactory to the Agent and each
Lender on the Closing Date:
(a) This Agreement and the other Loan Documents shall have been executed by each
party thereto, the Borrowers shall have performed and complied with all
covenants, agreements and conditions contained herein and the other Loan
Documents which are required to be performed or complied with by the Borrowers
before or on such Closing Date and the Borrowers shall have delivered to the
Agent the documents, certificates and requirements listed on the closing
checklist delivered to the Borrowers by the Agent.
(b) All representations and warranties made hereunder and in the other Loan
Documents shall be true and correct in all material respects as if made on such
date.
(c) No Default or Event of Default shall have occurred and be continuing after
giving effect to the Loans to be made and the Letters of Credit to be issued on
the Closing Date.
(d) The Borrowers shall have paid all reasonable fees and expenses of the Agent
and the Attorney Costs incurred in connection with any of the Loan Documents and
the transactions contemplated thereby to the extent invoiced.
(e) The Agent shall have received certificates of insurance, in form, scope, and
substance, reasonably satisfactory to the Agent, evidencing all insurance
coverage as required by this Agreement.
(f) The Agent shall have had an opportunity, if it so chooses, to examine the
books of account and other records and files of the Borrowers and to make copies
thereof, and to conduct a pre-closing audit which shall include, without
limitation, verification of Inventory, Accounts, and the Borrowing Base, and the
results of such examination and audit shall have been satisfactory to the Agent
and the Lenders in all respects.
(g) All proceedings taken in connection with the execution of this Agreement,
the Revolving Loan Notes (if any), all other Loan Documents and all documents
and papers relating thereto shall be reasonably satisfactory in form, scope, and
substance to the Agent and the Lenders.
(h) The Agent shall have received the results of UCC-1 and other Lien searches
requested by the Agent against the Borrowers (in each case dated as of a date
reasonably satisfactory to the Agent), which searches shall reflect the absence
of Liens on the assets (including Inventory and Accounts) of the Borrowers,
other than Liens that are satisfactory to the Agent or for which termination
statements and releases reasonably satisfactory to the Agent have been tendered.
(i) At the time of the making of the initial Loans or at the time of the
issuance of the initial Letters of Credit, whichever first occurs, the Agent and
the Lenders shall have received a certified copy (or such other evidence
reasonably satisfactory to Agent and its counsel) of an order of the Bankruptcy
Court substantially in the form of Exhibit F (the "Final Order"), which (i) as
entered, shall be acceptable in form and substance to the Agent, approving the
Loan Documents and granting the Superpriority Administrative Claim status
described in Section 7.25 with the priority described therein, (ii) shall have
been entered upon an application of the Borrowers reasonably satisfactory in
form and substance to the Agent and its counsel, (iii) shall be in full force
and effect and no Borrower shall have breached the terms thereof, and (iv) shall
not have been stayed, reversed, rescinded, modified, vacated or amended in any
respect.
(j) The Bankruptcy Cases shall have been commenced by the Borrowers, and the
Borrowers shall each be a debtor and debtor-in-possession.
(k) All orders entered in the Bankruptcy Cases on or prior to the date the Final
Order is entered shall be in form and substance reasonably satisfactory to the
Agent and its counsel.
The acceptance by the Borrowers of any Loans made or Letters
of Credit issued on the Closing Date shall be deemed to be a representation and
warranty made by the Borrowers to the effect that all of the conditions
precedent to the making of such Loans or the issuance of such Letters of Credit
have been satisfied, with the same effect as delivery to the Agent and the
Lenders of a certificate signed by a Responsible Officer of the Borrower
Representative, dated the Closing Date, to such effect.
Execution and delivery to the Agent by a Lender of a
counterpart of this Agreement shall be deemed confirmation by such Lender that
(i) all conditions precedent in this Section 8.1 have been fulfilled to the
satisfaction of such Lender, (ii) the decision of such Lender to execute and
deliver to the Agent an executed counterpart of this Agreement was made by such
Lender independently and without reliance on the Agent or any other Lender as to
the satisfaction of any condition precedent set forth in this Section 8.1, and
(iii) all documents sent to such Lender for approval, consent, or satisfaction
were acceptable to such Lender.
8.2 Conditions Precedent to Each Loan. The obligation of the Lenders to make
each Loan, including the initial Revolving Loans on the Closing Date, and the
obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter
of Credit shall be subject to the further conditions precedent that on and as of
the date of any such extension of credit (provided, however, that such
conditions precedent are not conditions to each Lender participating in or
reimbursing the Bank or the Agent for such Lenders' Pro Rata Share of any
Non-Ratable Loan made in accordance with the provisions of Section 1.2(h) or for
any drawing under a Letter of Credit or payment under a Credit Support):
(a) the following statements shall be true, and the acceptance by the Borrowers
of any extension of credit shall be deemed to be a statement to the effect set
forth in clauses (i) and (ii), with the same effect as the delivery to the Agent
and the Lenders of a certificate signed by a Responsible Officer of the Borrower
Representative, dated the date of such extension of credit, stating that:
(i) The representations and warranties contained in this Agreement and the other
Loan Documents are correct in all material respects on and as of the date of
such extension of credit as though made on and as of such date, other than any
such representation or warranty which relates to a specified prior date and
except to the extent the Agent and the Lenders have been notified in writing by
the Borrower Representative that any representation or warranty is not correct
and the Required Lenders have explicitly waived in writing compliance with such
representation or warranty; and
(ii) No event has occurred and is continuing, or would result from
such extension of credit, which constitutes a Default or an Event of
Default; and
(iii) No event has occurred and is continuing, or would result from such
extension of credit, which would reasonably be expected to have a Material
Adverse Effect.
(b) Subject to the second sentence of Section 1.2(a)(i), no such Borrowing
shall exceed Availability.
(c) No order shall have been entered or sought by any Borrower in any of the
Bankruptcy Cases, (i) for the appointment of a trustee or receiver, (ii) to
convert any Bankruptcy Case from a proceeding under chapter 11 of the Bankruptcy
Code to a proceeding under chapter 7 of the Bankruptcy Code, or (iii) to dismiss
any Bankruptcy Case.
(i) The Final Order shall be in full force and effect and shall not have been
violated or breached by any Borrower, stayed, reversed, rescinded, modified,
vacated or amended in any respect without the consent of the Required Lenders.
(d) None of the Bankruptcy Cases shall have been dismissed or converted to
chapter 7 of the Bankruptcy Code, no Borrower shall have filed an application
for an order dismissing its or any other Borrower's Bankruptcy Case or
converting its or any other Borrower's Bankruptcy Case to a case under chapter 7
of the Bankruptcy Code, and no trustee under chapter 7 or chapter 11 of the
Bankruptcy Code shall have been appointed in any of the Bankruptcy Cases.
ARTICLE 9
DEFAULT; REMEDIES
9.1 Events of Default. It shall constitute an event of default
("Event of Default") if any one or more of the following shall occur for any
reason:
(a) (i) any failure by any Borrower to pay the principal of any of the Loans or
to pay any reimbursement obligations relating to Letters of Credit or Credit
Supports when due, whether upon demand or otherwise, or (ii) any failure by any
Borrower to pay any interest or premium on any of the Loans or any fees or other
Obligations or other amount owing hereunder within three (3) Business Days of
the applicable due date, whether upon demand or otherwise;
(b) any representation or warranty made or deemed made by any Borrower in this
Agreement or in any of the other Loan Documents, any Financial Statement, or any
certificate furnished by any Borrower or any Other Subsidiary at any time to the
Agent or any Lender pursuant to any Loan Document shall prove to be untrue in
any material respect as of the date on which made, deemed made, or furnished;
(c) (i) any default shall occur in the observance or performance of any of the
covenants and agreements contained in Section 7.2 (insofar as such Section
relates to any Borrower) or Sections 7.8 through 7.25 (other than Section 7.24);
(ii) any default shall occur in the observance or performance of any of the
covenants and agreements contained in Sections 5.2(k) or 5.3(a) and such default
shall continue for three (3) Business Days or more; (iii) any default shall
occur in the observance or performance of any of the covenants and agreements
contained in any of Sections 5.2(a), 5.2(b), 5.2(c), 7.26 or 7.27 for fifteen
(15) Business Days or more; or (iv) any default shall occur in the observance or
performance of any of the other covenants or agreements contained in any other
Section of this Agreement or any other Loan Document, or any agreement entered
into at any time to which any Borrower and the Agent or any Lender are party in
respect of any Bank Products, and such default shall continue for thirty (30)
days after the earlier of (1) the date upon which written notice of such default
is given to the Borrower Representative by the Agent and (2) the date upon which
a Responsible Officer becomes aware of such default;
(d) any Borrower shall file a certificate of dissolution under applicable state
law or shall be liquidated, dissolved or wound-up or shall commence any action
or proceeding for dissolution, winding-up or liquidation, or shall take any
corporate action in furtherance thereof;
(e) all or any material part of the property of the Borrowers, taken as a whole,
shall be nationalized, expropriated or condemned, seized or otherwise
appropriated, or custody or control of such property or of any Borrower shall be
assumed by any Governmental Authority or any court of competent jurisdiction at
the instance of any Governmental Authority, except where contested in good faith
by proper proceedings diligently pursued where a stay of enforcement is in
effect;
(f) Any Loan Document shall be terminated (other than in accordance with its
terms), revoked or declared void or invalid or unenforceable or the validity or
enforceability thereof shall be challenged by any Borrower;
(g) any loss, theft, damage or destruction of any property of any Borrower or
any Other Subsidiary occurs, or any Litigation is commenced against any Borrower
(or any change in the facts and circumstances of such Litigation occurs), which
would reasonably be expected to cause a Material Adverse Effect and is not
adequately covered by insurance;
(h) there is filed against any Borrower or any Other Subsidiary action, suit or
proceeding under any federal or state racketeering statute (including the
Racketeer Influenced and Corrupt Organization Act of 1970), which action, suit
or proceeding (i) is not dismissed or stayed within one hundred twenty (120)
days, and (ii) would reasonably be expected to result in a Material Adverse
Effect;
(i) (i) an ERISA Event shall occur with respect to a Pension Plan or
Multi-employer Plan which has resulted or would reasonably be expected to have a
Material Adverse Effect; (ii) the aggregate amount of Unfunded Pension Liability
among all Pension Plans at any time exceeds an amount that would reasonably be
expected to have a Material Adverse Effect; or (iii) any Borrower or any ERISA
Affiliate shall fail to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multi-employer Plan in an aggregate amount
that would reasonably be expected to have a Material Adverse Effect;
(j) there occurs a Change of Control;
(k) any of the Bankruptcy Cases shall be dismissed or converted to a case under
chapter 7 of the Bankruptcy Code, or any Borrower shall file an application for
an order dismissing any of the Bankruptcy Cases or converting any of the
Bankruptcy Cases to a case under chapter 7 of the Bankruptcy Code; a trustee
under chapter 7 or chapter 11 of the Bankruptcy Code shall be appointed in any
of the Bankruptcy Cases; or an application shall be filed by any Borrower for
the approval of any other Superpriority Administrative Claim (other than the
Carve-Out) in any Bankruptcy Case which is pari passu with or senior to the
claims of the Agent and the Lenders against the Borrowers, or there shall arise
any such pari passu or senior Superpriority Administrative Claim, or the Final
Order shall be stayed, modified, amended, reversed, rescinded or vacated without
the written consent of Agent;
(l) the Bankruptcy Court shall enter an order or orders granting relief from the
automatic stay applicable under Section 362 of the Bankruptcy Code to the holder
or holders of any security interest to permit foreclosure (or the granting of a
deed in lieu of foreclosure or the like) in any assets of any Borrower; or an
order shall be entered by the Bankruptcy Court granting relief from the
automatic stay applicable under Section 362 of the Bankruptcy Code or from the
injunction and stay set forth in the Final Order to permit the creation,
perfection or enforcement of any judgment, lien, levy or attachment based on any
judgment, whether or not such judgment arises from or gives rise to a
pre-petition or post-petition claim; or an order shall be entered by the
Bankruptcy Court that is not stayed pending appeal otherwise granting relief
from the automatic stay to any creditor of any Borrower (other than the Agent
and the Lenders in their capacities as such) with respect to any claim;
provided, however, that it shall not be an Event of Default if relief from the
automatic stay is lifted solely for the purpose of (i) allowing such creditor to
determine the liquidated amount of its claim against any Borrower; (ii) seeking
payment from a source other than any of the Borrowers or any of their assets
(iii) allowing the Company to prepay up to $10,000,000 of prepetition
indebtedness with respect to precious metals synthetic leases between the
Company, as lessee, and Xxxxxx Metals, Inc., as lessor, in connection with the
Company's termination of all or a portion of the lessor's interest in the
precious metals subject to such lease; or (iv) allowing the foregoing actions to
be taken by the holders of pre-petition claims in an aggregate amount not
exceeding $10,000,000 with respect to all such holders.
(m) an order of the Bankruptcy Court shall be entered in any of the Bankruptcy
Cases appointing an examiner with enlarged powers relating to the operation of
any Borrower's business under Section 1106(b) of the Bankruptcy Code or any
Borrower shall file an application for such an order;
(n) an order by the Bankruptcy Court shall be entered confirming a
Reorganization Plan in any of the Bankruptcy Cases which does not require a
provision for termination of the Commitments and indefeasible payment in full in
cash of all Obligations of the Borrowers hereunder and under the other Loan
Documents (including the cancellation and return of all Letters of Credit or the
delivery of Supporting Letters of Credit or Cash Collateral with respect to such
Letters of Credit in accordance with Section 1.4(g)) on or before the effective
date of such Reorganization Plan;
(o) an order by the Bankruptcy Court shall be entered, or the Borrowers shall
file an application for an order, dismissing any of the Bankruptcy Cases which
does not require a provision for termination of the Commitments and indefeasible
payment in full in cash of all Obligations of the Borrowers hereunder and under
the other Loan Documents (including the cancellation and return of all Letters
of Credit or the delivery of Supporting Letters of Credit or Cash Collateral
with respect to such Letters of Credit in accordance with Section 1.4(g)) prior
to any such dismissal;
(p) an order by the Bankruptcy Court shall be entered in or with respect to any
of the Bankruptcy Cases or any Borrower shall file an application for an order
with respect to any Bankruptcy Case, in each case without the express prior
written consent of Agent, (i) to revoke, reverse, stay, rescind, modify, vacate,
supplement or amend the Final Order, (ii) to permit any administrative expense
or any claim (now existing or hereafter arising, of any kind or nature
whatsoever) to have an administrative priority as to any Borrower equal or
superior to the priority of the claims of the Agent and the Lenders in respect
of the Obligations (other than the Carve-Out), or (iii) to grant or permit the
grant of a Lien on the property of any Borrower (other than Liens permitted
under Section 7.17);
(q) an application for any of the orders described above shall be made by a
Person other than a Borrower and such application is not contested by the
applicable Borrower in good faith and the relief requested is granted in an
order that is not stayed pending appeal; or
(r) any Borrower shall violate or fail to comply with the Final Order.
9.2 Remedies.
--------
(a) If a Default or an Event of Default exists, the Agent may, in its
discretion, and shall, at the direction of the Required Lenders, without further
order of or application to the Bankruptcy Court as permitted by the Final Order,
do one or more of the following at any time or times and in any order, without
notice to or demand on any Borrower: (i) reduce the Maximum Revolver Amount, or
the advance rates against Eligible Accounts and/or Eligible Inventory used in
computing the Borrowing Base, or reduce one or more of the other elements used
in computing the Borrowing Base; (ii) restrict the amount of or refuse to make
Revolving Loans; and (iii) restrict or refuse to provide Letters of Credit or
Credit Support. If an Event of Default exists, the Agent shall, at the direction
of the Required Lenders, do one or more of the following, in addition to the
actions described in the preceding sentence, at any time or times and in any
order, without notice to or demand on any Borrower: (A) terminate the
Commitments and this Agreement; (B) declare any or all Obligations to be
immediately due and payable; provided, however, that upon the occurrence of any
Event of Default described in Sections 9.1(k), (l), (m), (n), (o), (p) or (q),
the Commitments shall automatically and immediately expire and all Obligations
shall automatically become immediately due and payable without notice or demand
of any kind; (C) require the Borrowers to cash collateralize all outstanding
Letters of Credit; and (D) pursue its other rights and remedies under the Loan
Documents and applicable laws.
(b) If an Event of Default has occurred and is continuing, the Agent shall have
for the benefit of the Lenders, in addition to all other rights of the Agent and
the Lenders, the rights and remedies of a creditor under applicable bankruptcy
and non-bankruptcy law.
(c) If an Event of Default occurs, the Borrowers hereby waive all rights to
notice and hearing prior to the exercise by the Agent of the Agent's rights
without judicial process to attach or levy upon property without notice or
hearing.
(d) If an Event of Default has occurred and is continuing, and subject to any
notice requirements set forth in the Final Order, all stays and injunctions,
including the automatic stay pursuant to Bankruptcy Code section 362, shall be
vacated and terminated by the Final Order and this Agreement to the extent
necessary to permit the Agent and the Lenders full exercise of all of their
rights and remedies, including, without limitation, all of their rights and
remedies with respect to the Borrowers' property. With respect to the Agent's
and Lenders' exercise of their rights and remedies, the Borrowers agree and
warrant as follows:
(i) the Borrowers waive, release, and shall be enjoined from attempting to
contest, delay, or otherwise dispute the exercise by the Agent and the Lenders
of their rights and remedies before the Bankruptcy Court or otherwise; except
only as expressly stated in subparagraph (ii) of this paragraph; and
(ii) when any Agent or Lender seeks to enforce its rights and remedies based on
an Event of Default, and if any Borrower disputes that an Event of Default has
occurred, the Borrowers will be entitled to file an emergency motion with the
Bankruptcy Court disputing whether an Event of Default has occurred. Unless
otherwise agreed in writing by Agent, any such motion shall be heard within two
(2) Business Days after it is filed. At the hearing on the emergency motion, the
only issue that will be heard by the Bankruptcy Court will be whether an Event
of Default has occurred and has not been cured, and, unless the Bankruptcy Court
issues an order in connection with such hearing finding that no Event of Default
has occurred and is continuing, the Agent and the Lenders will be entitled to
continue to exercise all of their rights and remedies without the necessity of
any further notice or order. Furthermore, nothing herein shall be construed to
impose or reimpose any stay or injunction of any kind against the Agent or the
Lenders.
ARTICLE 10
TERM AND TERMINATION
10.1 Term and Termination. The term of this Agreement shall end on the Stated
Termination Date unless sooner terminated in accordance with the terms hereof.
The Agent upon direction from the Required Lenders may terminate this Agreement
without notice upon the occurrence and during the continuance of an Event of
Default. Upon the effective date of termination of this Agreement for any reason
whatsoever, all Obligations (including all unpaid principal, accrued and unpaid
interest and any early termination or prepayment fees or penalties) shall become
immediately due and payable and the Borrowers shall immediately arrange for the
cancellation and return of Letters of Credit then outstanding (or the delivery
of Supporting Letters of Credit or Cash Collateral in accordance with Section
14(g). Notwithstanding the termination of this Agreement, until all Obligations
are indefeasibly paid and performed in full in cash, each Borrower shall remain
bound by the terms of this Agreement and shall not be relieved of any of its
Obligations hereunder or under any other Loan Document, and the Agent and the
Lenders shall retain all their rights and remedies hereunder.
ARTICLE 11
AMENDMENTS; WAIVERs; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS
11.1 Amendments and Waivers.
----------------------
(a) No amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by any Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
the Required Lenders (or by the Agent at the written request of the Required
Lenders) and each Borrower (or the Borrower Representative) 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
each Borrower (or the Borrower Representative) and acknowledged by the Agent, do
any of the following:
(i) increase or extend the Commitment of any Lender;
(ii) postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document;
(iii) reduce the principal of, or the rate of interest specified herein on, any
Loan, or any fees payable hereunder or under any other Loan Document;
(iv) 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;
(v) increase any of the percentages set forth in the definition of the
Borrowing Base;
(vi) amend this Section or any provision of this Agreement providing
for consent or other action by all Lenders;
(vii) change the definitions of "Majority Lenders" or "Required Lenders"; or
(viii) increase the Maximum Revolver Amount, the Maximum Inventory
Loan Amount, and Letter of Credit Subfacility;
provided, however, that no amendment, waiver or consent shall, unless in writing
and signed by the Agent, affect the rights or duties of the Agent under this
Agreement or any other Loan Document and provided further, that Schedule 1.1
hereto (Commitments) may be amended from time to time by the Agent alone to
reflect assignments of Commitments in accordance herewith.
(b) If any fees are paid to the Lenders as consideration for amendments, waivers
or consents with respect to this Agreement, at Agent's election, such fees may
be paid only to those Lenders that agree to such amendments, waivers or consents
within the time specified for submission thereof.
(c) If, in connection with any proposed amendment, waiver or consent (a
"Proposed Change"):
(i) requiring the consent of all Lenders, the consent of Required Lenders is
obtained, but the consent of other Lenders is not obtained (any such Lender
whose consent is not obtained as described in this clause (i) and in clause (ii)
below being referred to as a "Non-Consenting Lender"), or
(ii) requiring the consent of Required Lenders, the consent of Majority
Lenders is obtained,
then, so long as the Agent is not a Non-Consenting Lender, at the Borrower
Representative's request, the Agent or an Eligible Assignee shall have the right
(but not the obligation) with the Agent's approval, to purchase from the
Non-Consenting Lenders, and the Non-Consenting Lenders agree that they shall
sell, all the Non-Consenting Lenders' Commitments for an amount equal to the
principal balances thereof and all accrued and unpaid interest and fees with
respect thereto through the date of sale pursuant to Assignment and Acceptance
Agreement(s), without premium or discount.
11.2 Assignments; Participations.
---------------------------
(a) Any Lender may, with the written consent of the Agent (which consent shall
not be unreasonably withheld or delayed) and the consent of the Borrower
Representative (which consent shall not be unreasonably withheld or delayed and
which consent shall not be required so long as an Event of Default has occurred
and is continuing), assign and delegate to one or more Eligible Assignees
(provided that no consent of the Agent or the Borrower Representative shall be
required in connection with any assignment and delegation by a Lender to an
Affiliate of such Lender) (each an "Assignee") all, or any ratable part of all,
of the Loans, the Commitments and the other rights and obligations of such
Lender hereunder, in a minimum amount of $10,000,000 (provided that, unless an
assignor Lender has assigned and delegated all of its Loans and Commitments, no
such assignment and/or delegation shall be permitted unless, after giving effect
thereto, such assignor Lender retains a Commitment in a minimum amount of
$10,000,000; provided, however, that the Borrowers and the Agent may continue to
deal solely and directly with such Lender in connection with the interest so
assigned to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower Representative and the Agent by
such Lender and the Assignee; (ii) such Lender and its Assignee shall have
delivered to the Borrower Representative and the Agent an Assignment and
Acceptance in the form of Exhibit H ("Assignment and Acceptance") duly executed
by such Lender and its Assignee, together with any note or notes subject to such
assignment, and such Assignment and Acceptance shall have been acknowledged by
the Agent and, if required hereunder, the Borrower; and (iii) the assignor
Lender or Assignee has paid to the Agent a processing fee in the amount of
$3,500. Borrowers agree to promptly execute and deliver new promissory notes and
replacement promissory notes as reasonably requested by the Agent to evidence
assignments of the Loans and Commitments in accordance herewith.
(b) From and after the date that the Agent notifies the assignor Lender that it
has received an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations, including, but not
limited to, the obligation to participate in Letters of Credit and Credit
Support 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 this Agreement (and in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the Assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or the
performance or observance by any Borrower of any of its obligations under this
Agreement or any other Loan Document furnished pursuant hereto; (iii) such
Assignee confirms that it has received a copy of this Agreement, together with
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such Assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
Assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers, including the
discretionary rights and incidental power, as are reasonably incidental thereto;
and (vi) such Assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender.
(d) Immediately upon satisfaction of the requirements of Section 11.2(a), this
Agreement shall be deemed to be amended to the extent, but only to the extent,
necessary to reflect the addition of the Assignee and the resulting adjustment
of the Commitments arising therefrom. The Commitment allocated to each Assignee
shall reduce such Commitments of the assigning Lender pro tanto.
(e) Any Lender may at any time sell to one or more commercial banks or other
financial institutions (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 Borrowers and the
Agent shall continue to deal solely and directly with the originating Lender in
connection with the originating Lender's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Lender shall transfer or
grant any participating interest under which the Participant has rights to
approve any amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Document, and all amounts payable by the Borrowers
hereunder shall be determined as if such Lender had not sold such participation;
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall be deemed to have the right of set-off in respect of its
participating interest in amounts owing under this Agreement to the same extent
and subject to the same limitation as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement.
(f) Notwithstanding any other provision in this Agreement, any Lender may at any
time create a security interest in, or pledge, all or any portion of its rights
under and interest in this Agreement in favor of any Federal Reserve Bank in
accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
ss.203.14, and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
ARTICLE 12
THE AGENT
12.1 Appointment and Authorization. Each Lender hereby designates and appoints
Bank as its Agent under this Agreement and the other Loan Documents and each
Lender hereby irrevocably authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. The Agent agrees to act as such on
the express conditions contained in this Article 12. The provisions of this
Article 12 are solely for the benefit of the Agent and the Lenders and none of
the Borrowers shall have any rights as a third party beneficiary of any of the
provisions contained herein. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent. Without limiting the generality
of the foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties. Except as expressly otherwise provided in this Agreement,
the Agent shall have and may use its sole discretion with respect to exercising
or refraining from exercising any discretionary rights or taking or refraining
from taking any actions which the Agent is expressly entitled to take or assert
under this Agreement and the other Loan Documents, including (a) the
determination of the applicability of ineligibility criteria with respect to the
calculation of the Borrowing Base and (b) the exercise of remedies pursuant to
Section 9.2, and any action so taken or not taken shall be deemed consented to
by the Lenders.
12.2 Delegation of Duties. The Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects as
long as such selection was made without gross negligence or willful misconduct.
12.3 Liability of Agent. None of the Agent-Related Persons shall (i) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Lenders for any recital,
statement, representation or warranty made by any Borrower or any Other
Subsidiary or Affiliate of any Borrower, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Borrower or any
Other Subsidiaries or Affiliates.
12.4 Reliance by Agent. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Borrowers), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the 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 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 all Lenders if so required by Section 11.1) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
12.5 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, unless the Agent
shall have received written notice from a Lender or the Borrower Representative
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default." The Agent will notify the
Lenders of its receipt of any such notice. The Agent shall take such action with
respect to such Default or Event of Default as may be requested by the Required
Lenders in accordance with Section 9; provided, however, that unless and until
the Agent has received any such request, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable.
12.6 Credit Decision. Each Lender acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by the
Agent hereinafter taken, including any review of the affairs of the Borrowers
and their Affiliates, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender. Each Lender represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrowers and their Affiliates, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrowers. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of Borrowers. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any Borrower which may come into the possession of any of
the Agent-Related Persons.
12.7 Indemnification. Whether or not the transactions contemplated hereby are
consummated, the Lenders shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), in accordance with its Pro
Rata Share, from and against any and all Indemnified Liabilities as such term is
defined in Section 13.11; provided, however, that no Lender shall be liable for
the payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender shall reimburse the
Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that the Agent is not reimbursed for such expenses by or on behalf
of the Borrowers. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of the Agent.
12.8 Agent in Individual Capacity. The Bank 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 any Borrower and its
Affiliates as though the Bank were not the Agent hereunder and without notice to
or consent of the Lenders. The Bank or its Affiliates may receive information
regarding any Borrower, its Affiliates and Account Debtors (including
information that may be subject to confidentiality obligations in favor of such
Borrower or such Affiliates) and acknowledge that the Agent and the Bank shall
be under no obligation to provide such information to them. With respect to its
Loans, the Bank 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 Agent, and
the terms "Lender" and "Lenders" include the Bank in its individual capacity.
12.9 Successor Agent. The Agent may resign as Agent upon at least 30 days' prior
notice to the Lenders and the Borrower Representative, such resignation to be
effective upon the acceptance of a successor agent to its appointment as Agent.
In the event the Bank sells all of its Commitment and Revolving Loans as part of
a sale, transfer or other disposition by the Bank of substantially all of its
loan portfolio, the Bank shall resign as Agent and such purchaser or transferee
shall become the successor Agent hereunder. Subject to the foregoing, if the
Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent shall
be reasonably satisfactory to the Borrower Representative so long as no Event of
Default shall have occurred and be continuing. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Lenders and the Borrower Representative,
a successor agent from among the Lenders, which successor agent shall be
reasonably satisfactory to the Borrower Representative so long as no Event of
Default shall have occurred and be continuing; provided that if no successor
agent shall have been appointed within the 30 Business Day period following
delivery of the Agent's notice of resignation, such resignation shall become
effective and the Required Lenders shall thereafter perform all of the duties of
the Agent until such time, if any , as the Required Lenders appoint a successor
agent as provided above. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article 12 shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
12.10 Withholding Tax.
---------------
(a) If any Lender is a "foreign corporation, partnership or trust" within the
meaning of the Code and such Lender may claim exemption from, or a reduction of,
U.S. withholding tax under Sections 1441 or 1442 of the Code, such Lender agrees
with and in favor of the Agent, to deliver to the Agent:
(i) if such Lender may claim an exemption from, or a reduction of, withholding
tax under a United States of America tax treaty, properly completed IRS Forms
W-8BEN and W-8ECI before the payment of any interest in the first calendar year
and before the payment of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement;
(ii) if such Lender may claim that interest paid under this Agreement is exempt
from United States of America withholding tax because it is effectively
connected with a United States of America trade or business of such Lender, two
properly completed and executed copies of IRS Form W-8ECI before the payment of
any interest is due in the first taxable year of such Lender and in each
succeeding taxable year of such Lender during which interest may be paid under
this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required under the Code or other laws
of the United States of America as a condition to exemption from, or reduction
of, United States of America withholding tax. If such Lender claims an exemption
from withholding tax pursuant to its portfolio interest exception (a) a
statement of the Lender that it is not a (i) a "bank" as described in Section
881(c)(3)(A) of the Code, (ii) a 10% shareholder (within the meaning of Section
881(c)(3)(B) of the Code) or (iii) a controlled foreign corporation described in
Section 881(c)(3)(C) of the Code and (b) a properly completed Form W-8BEN.
Such Lender agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Lender claims exemption from, or reduction of, withholding tax under
a United States of America tax treaty by providing IRS Form W-8BEN and such
Lender sells, assigns, grants a participation in, or otherwise transfers all or
part of the Obligations owing to such Lender, such Lender agrees to notify the
Agent of the percentage amount in which it is no longer the beneficial owner of
Obligations of the Borrowers to such Lender. To the extent of such percentage
amount, the Agent will treat such Lender's IRS Form W-8BEN as no longer valid.
(c) If any Lender claiming exemption from United States of America withholding
tax by filing IRS Form W-8ECI with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations owing to
such Lender, such Lender agrees to undertake sole responsibility for complying
with the withholding tax requirements imposed by Sections 1441 and 1442 of the
Code.
(d) If any Lender is entitled to a reduction in the applicable withholding tax,
the Agent shall withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by subsection (a) of
this Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United States of
America or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered, was not properly executed, or because such
Lender failed to notify the Agent of a change in circumstances which rendered
the exemption from, or reduction of, withholding tax ineffective, or for any
other reason) such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Agent.
(f) Each Person that shall become an Assignee or Participant of a Lender shall,
upon the effectiveness of the related transfer, be required to provide all of
the forms and statements required pursuant to this Section 12.10 to the extent
applicable to such Assignee or Participant.
12.11 [Intentionally Omitted.]
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12.12 Restrictions on Actions by Lenders; Sharing of Payments.
-------------------------------------------------------
(a) Each of the Lenders agrees that it shall not, without the express consent of
all Lenders, and that it shall, to the extent it is lawfully entitled to do so,
upon the request of all Lenders, set off against the Obligations, any amounts
owing by such Lender to any Borrower or any accounts of any Borrower now or
hereafter maintained with such Lender. Each of the Lenders further agrees that
it shall not, unless specifically requested to do so by the Agent, take or cause
to be taken any action to enforce its rights under this Agreement or against any
Borrower.
(b) If at any time or times any Lender shall receive (i) by payment,
foreclosure, setoff or otherwise, any payments with respect to the Obligations
of any Borrower to such Lender arising under, or relating to, this Agreement or
the other Loan Documents, except for any such payments received by such Lender
from the Agent pursuant to the terms of this Agreement, or (ii) payments from
the Agent in excess of such Lender's Pro Rata Share of all such distributions by
the Agent, such Lender shall promptly (1) turn the same over to the Agent, in
kind, and with such endorsements as may be required to negotiate the same to the
Agent, or in same day funds, as applicable, for the account of all of the
Lenders and for application to the Obligations in accordance with the applicable
provisions of this Agreement, or (2) purchase, without recourse or warranty, an
undivided interest and participation in the Obligations owed to the other
Lenders so that such excess payment received shall be applied ratably as among
the Lenders in accordance with their Pro Rata Shares; provided, however, that if
all or part of such excess payment received by the purchasing party is
thereafter recovered from it, those purchases of participations shall be
rescinded in whole or in part, as applicable, and the applicable portion of the
purchase price paid therefor shall be returned to such purchasing party, but
without interest except to the extent that such purchasing party is required to
pay interest in connection with the recovery of the excess payment.
12.13 [Intentionally Omitted]
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12.14 Payments by Agent to Lenders. All payments to be made by the Agent to the
Lenders shall be made by bank wire transfer or internal transfer of immediately
available funds to each Lender pursuant to wire transfer instructions delivered
in writing to the Agent on or prior to the Closing Date (or if such Lender is an
Assignee, on the applicable Assignment and Acceptance), or pursuant to such
other wire transfer instructions as each party may designate for itself by
written notice to the Agent. Concurrently with each such payment, the Agent
shall identify whether such payment (or any portion thereof) represents
principal, premium or interest on the Revolving Loans or other amounts payable
hereunder. Unless the Agent receives notice from the Borrower Representative
prior to the date on which any payment is due to the Lenders that the Borrowers
will not make such payment in full as and when required, the Agent may assume
that the Borrowers have made such payment in full to the Agent on such date in
immediately available funds and the 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
Borrowers have not made such payment in full to the Agent, each Lender shall
repay to the 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.
12.15 Settlement.
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(a) (i) Each Lender's funded portion of the Revolving Loans is intended by the
Lenders to be equal at all times to such Lender's Pro Rata Share of the
outstanding Revolving Loans. Notwithstanding such agreement, the Agent, the
Bank, and the other Lenders agree (which agreement shall not be for the benefit
of or enforceable by any Borrower) that in order to facilitate the
administration of this Agreement and the other Loan Documents, settlement among
them as to the Revolving Loans, the Non-Ratable Loans shall take place on a
periodic basis in accordance with the following provisions:
(ii) The Agent shall request settlement ("Settlement") with the Lenders on
at least a weekly basis, or on a more frequent basis at Agent's election, (A) on
behalf of the Bank, with respect to each outstanding Non-Ratable Loan, and (B)
with respect to collections received, in each case, by notifying the Lenders of
such requested Settlement by telecopy, telephone or other similar form of
transmission, of such requested Settlement, no later than 12:00 noon (Chicago,
Illinois time) on the date of such requested Settlement (the "Settlement Date").
Each Lender (other than the Bank, in the case of Non-Ratable Loans) shall
transfer the amount of such Lender's Pro Rata Share of the outstanding principal
amount of the Non-Ratable Loans with respect to each Settlement to the Agent, to
Agent's account, not later than 2:00 p.m. (Chicago, Illinois time), on the
Settlement Date applicable thereto. Settlements may occur during the
continuation of a Default or an Event of Default and whether or not the
applicable conditions precedent set forth in Article 8 have then been satisfied.
Such amounts made available to the Agent shall be applied against the amounts of
the applicable Non-Ratable Loan and, together with the portion of such
Non-Ratable Loan representing the Bank's Pro Rata Share thereof, shall
constitute Revolving Loans of such Lenders. If any such amount is not
transferred to the Agent by any Lender on the Settlement Date applicable
thereto, the Agent shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the Federal Funds Rate for the first
three (3) days from and after the Settlement Date and thereafter at the Interest
Rate then applicable to the Revolving Loans on behalf of the Bank, with respect
to each outstanding Non-Ratable Loan.
(iii) Notwithstanding the foregoing, not more than one (1) Business Day
after demand is made by the Agent (whether before or after the occurrence of a
Default or an Event of Default and regardless of whether the Agent has requested
a Settlement with respect to a Non-Ratable Loan), each other Lender (A) shall
irrevocably and unconditionally purchase and receive from the Bank or the Agent,
as applicable, without recourse or warranty, an undivided interest and
participation in such Non-Ratable Loan equal to such Lender's Pro Rata Share of
such Non-Ratable Loan and (B) if Settlement has not previously occurred with
respect to such Non-Ratable Loans, upon demand by Bank or Agent, as applicable,
shall pay to Bank or Agent, as applicable, as the purchase price of such
participation an amount equal to one hundred percent (100%) of such Lender's Pro
Rata Share of such Non-Ratable Loans. If such amount is not in fact made
available to the Agent by any Lender, the Agent shall be entitled to recover
such amount on demand from such Lender together with interest thereon at the
Federal Funds Rate for the first three (3) days from and after such demand and
thereafter at the Interest Rate then applicable to Base Rate Revolving Loans.
(iv) From and after the date, if any, on which any Lender purchases an
undivided interest and participation in any Non-Ratable Loan pursuant to clause
(iii) above, the Agent shall promptly distribute to such Lender, such Lender's
Pro Rata Share of all payments of principal and interest and all other proceeds
received by the Agent in respect of such Non-Ratable Loan.
(v) Between Settlement Dates, the Agent, may pay over to the Bank any
payments received by the Agent, which in accordance with the terms of this
Agreement would be applied to the reduction of the Revolving Loans, for
application to the Bank's Revolving Loans including Non-Ratable Loans. If, as of
any Settlement Date, collections received since the then immediately preceding
Settlement Date have been applied to the Bank's Revolving Loans (other than to
Non-Ratable Loans in which such Lender has not yet funded its purchase of a
participation pursuant to clause (iii) above), as provided for in the previous
sentence, the Bank shall pay to the Agent for the accounts of the Lenders, to be
applied to the outstanding Revolving Loans of such Lenders, an amount such that
each Lender shall, upon receipt of such amount, have, as of such Settlement
Date, its Pro Rata Share of the Revolving Loans. During the period between
Settlement Dates, the Bank with respect to Non-Ratable Loans, and each Lender
with respect to the Revolving Loans other than Non-Ratable Loans, shall be
entitled to interest at the applicable rate or rates payable under this
Agreement on the actual average daily amount of funds employed by the Bank, the
Agent and the other Lenders.
(b) Lenders' Failure to Perform. All Revolving Loans (other than Non-Ratable
Loans) shall be made by the Lenders simultaneously and in accordance with their
Pro Rata Shares. It is understood that (i) no Lender shall be responsible for
any failure by any other Lender to perform its obligation to make any Revolving
Loans hereunder, nor shall any Commitment of any Lender be increased or
decreased as a result of any failure by any other Lender to perform its
obligation to make any Revolving Loans hereunder, (ii) no failure by any Lender
to perform its obligation to make any Revolving Loans hereunder shall excuse any
other Lender from its obligation to make any Revolving Loans hereunder, and
(iii) the obligations of each Lender hereunder shall be several, not joint and
several.
(c) Defaulting Lenders. Unless the 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 Agent that
Lender's Pro Rata Share of a Borrowing, the Agent may assume that each Lender
has made such amount available to the Agent in immediately available funds on
the Funding Date. Furthermore, the Agent may, in reliance upon such assumption,
make available to the Borrowers on such date a corresponding amount. If any
Lender has not transferred its full Pro Rata Share to the Agent in immediately
available funds and the Agent has transferred corresponding amount to the
Borrowers, on the Business Day following such Funding Date that Lender shall
make such amount available to the Agent, together with interest at the Federal
Funds Rate for that day. A notice by the Agent submitted to any Lender with
respect to amounts owing shall be conclusive, absent manifest error. If each
Lender's full Pro Rata Share is transferred to the Agent as required, the amount
transferred to the Agent shall constitute that Lender's Revolving Loan for all
purposes of this Agreement. If that amount is not transferred to the Agent on
the Business Day following the Funding Date, the Agent will notify the Borrower
Representative of such failure to fund and, upon demand by the Agent, the
Borrowers shall pay such amount to the Agent for the 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
Revolving Loans comprising that particular Borrowing. The failure of any Lender
to make any Revolving Loan on any Funding Date (any such Lender, prior to the
cure of such failure, being hereinafter referred to as a "Defaulting Lender")
shall not relieve any other Lender of its obligation hereunder to make a
Revolving Loan on that Funding Date. No Lender shall be responsible for any
other Lender's failure to advance such other Lenders' Pro Rata Share of any
Borrowing.
(d) Retention of Defaulting Lender's Payments. The Agent shall not be obligated
to transfer to a Defaulting Lender any payments made by the Borrowers to the
Agent for the Defaulting Lender's benefit; nor shall a Defaulting Lender be
entitled to the sharing of any payments hereunder. Amounts payable to a
Defaulting Lender shall instead be paid to or retained by the Agent. In its
discretion, the Agent may loan the Borrowers the amount of all such payments
received or retained by it for the account of such Defaulting Lender. Any
amounts so loaned to the Borrowers shall bear interest at the rate applicable to
Base Rate Revolving Loans and for all other purposes of this Agreement shall be
treated as if they were Revolving Loans, provided, however, that for purposes of
voting or consenting to matters with respect to the Loan Documents and
determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a
"Lender". Until a Defaulting Lender cures its failure to fund its Pro Rata Share
of any Borrowing (A) such Defaulting Lender shall not be entitled to any portion
of the Unused Line Fee and (B) the Unused Line Fee shall accrue in favor of the
Lenders which have funded their respective Pro Rata Shares of such requested
Borrowing and shall be allocated among such performing Lenders ratably based
upon their relative Commitments. This Section shall remain effective with
respect to such Lender until such time as the Defaulting Lender shall no longer
be in default of any of its obligations under this Agreement. The terms of this
Section shall not be construed to increase or otherwise affect the Commitment of
any Lender, or relieve or excuse the performance by the Borrowers of their
duties and obligations hereunder.
(e) Removal of Defaulting Lender. At the Borrower Representative's request, the
Agent or an Eligible Assignee reasonably acceptable to the Agent and the
Borrower Representative shall have the right (but not the obligation) to
purchase from any Defaulting Lender, and each Defaulting Lender shall, upon such
request, sell and assign to the Agent or such Eligible Assignee, all of the
Defaulting Lender's outstanding Commitments hereunder. Such sale shall be
consummated promptly after the Agent has arranged for a purchase by the Agent or
an Eligible Assignee pursuant to an Assignment and Acceptance, and at a price
equal to the outstanding principal balance of the Defaulting Lender's Loans,
plus accrued and unpaid interest and fees, without premium or discount.
12.16 Letters of Credit; Intra-Lender Issues.
--------------------------------------
(a) Notice of Letter of Credit Balance. On each Settlement Date the
Agent shall notify each Lender of the issuance of all Letters of Credit since
the prior Settlement Date.
(b) Participations in Letters of Credit.
-----------------------------------
(i) Purchase of Participations. Immediately upon issuance of any Letter of
Credit in accordance with Section 1.4(d), each Lender shall be deemed to have
irrevocably and unconditionally purchased and received without recourse or
warranty, an undivided interest and participation equal to such Lender's Pro
Rata Share of the face amount of such Letter of Credit or the Credit Support
provided through the Agent to the Letter of Credit Issuer, if not the Bank, in
connection with the issuance of such Letter of Credit (including all obligations
of the Borrowers with respect thereto, and any security therefor or guaranty
pertaining thereto).
(ii) Sharing of Reimbursement Obligation Payments. Whenever the Agent receives a
payment from the Borrowers on account of reimbursement obligations in respect of
a Letter of Credit or Credit Support as to which the Agent has previously
received for the account of the Letter of Credit Issuer thereof payment from a
Lender, the Agent shall promptly pay to such Lender such Lender's Pro Rata Share
of such payment from the Borrowers. Each such payment shall be made by the Agent
on the next Settlement Date.
(iii) Documentation. Upon the request of any Lender, the Agent shall furnish to
such Lender copies of any Letter of Credit, Credit Support for any Letter of
Credit, reimbursement agreements executed in connection therewith, applications
for any Letter of Credit, and such other documentation as may reasonably be
requested by such Lender.
(iv) Obligations Irrevocable. The obligations of each Lender to make payments to
the Agent with respect to any Letter of Credit or with respect to their
participation therein or with respect to any Credit Support for any Letter of
Credit or with respect to the Revolving Loans made as a result of a drawing
under a Letter of Credit and the joint and several obligations of the Borrowers
to make payments to the Agent, for the account of the Lenders, shall be
irrevocable and shall not be subject to any qualification or exception
whatsoever , including any of the following circumstances:
(1) any lack of validity or enforceability of this Agreement or any of the
other Loan Documents;
(2) the existence of any claim, setoff, defense or other right which any
Borrower may have at any time against a beneficiary named in a Letter
of Credit or any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), any Lender, the Agent, the
issuer of such Letter of Credit, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between any Borrower or any other Person and
the beneficiary named in any Letter of Credit);
(3) any draft, certificate or any other document presented under the Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(4) the occurrence of any Default or Event of Default; or
(5) the failure of the Borrowers to satisfy the applicable conditions
precedent set forth in Article 8.
(c) Recovery or Avoidance of Payments; Refund of Payments In Error. In the event
any payment by or on behalf of any Borrower received by the Agent with respect
to any Letter of Credit or Credit Support provided for any Letter of Credit and
distributed by the Agent to the Lenders on account of their respective
participations therein is thereafter set aside, avoided or recovered from the
Agent in connection with any receivership, liquidation or bankruptcy proceeding,
the Lenders shall, upon demand by the Agent, pay to the Agent their respective
Pro Rata Shares of such amount set aside, avoided or recovered, together with
interest at the rate required to be paid by the Agent upon the amount required
to be repaid by it. Unless the Agent receives notice from the Borrower
Representative prior to the date on which any payment is due to the Lenders that
the Borrowers will not make such payment in full as and when required, the Agent
may assume that the Borrowers have made such payment in full to the Agent on
such date in immediately available funds and the 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 Borrowers have not made such payment in full to the Agent, each
Lender shall repay to the 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.
12.17 Concerning the Related Loan Documents. Each Lender authorizes and directs
the Agent to enter into the other Loan Documents, for the ratable benefit and
obligation of the Agent and the Lenders. Each Lender agrees that any action
taken by the Agent, Majority Lenders or Required Lenders, as applicable, in
accordance with the terms of this Agreement or the other Loan Documents, and the
exercise by the Agent, the Majority Lenders, or the Required Lenders, as
applicable, of their respective powers set forth therein or herein, together
with such other powers that are reasonably incidental thereto, shall be binding
upon all of the Lenders.
12.18 Field Audit and Examination Reports; Disclaimer by Lenders. By signing
this Agreement, each Lender:
(a) is deemed to have requested that the Agent furnish such Lender, promptly
after it becomes available, a copy of each field audit or examination report
(each a "Report" and collectively, "Reports") prepared by the Agent;
(b) expressly agrees and acknowledges that neither the Bank nor the Agent (i)
makes any representation or warranty as to the accuracy of any Report, or (ii)
shall be liable for any information contained in any Report;
(c) expressly agrees and acknowledges that the Reports are not comprehensive
audits or examinations, that the Agent or the Bank or other party performing any
audit or examination will inspect only specific information regarding the
Borrowers and will rely significantly upon the Borrowers' books and records, as
well as on representations of the Borrower's personnel;
(d) agrees to keep all Reports confidential and strictly for its internal
use, and not to distribute except, subject to Section 13.17(b), to its
participants, or use any Report in any other manner; and
(e) without limiting the generality of any other indemnification provision
contained in this Agreement, agrees: (i) to hold the Agent and any such other
Lender preparing a Report harmless from any action the indemnifying Lender may
take or conclusion the indemnifying Lender may reach or draw from any Report in
connection with any loans or other credit accommodations that the indemnifying
Lender has made or may make to the Borrowers, or the indemnifying Lender's
participation in, or the indemnifying Lender's purchase of, a loan or loans of
the Borrowers; and (ii) to pay and protect, and indemnify, defend and hold the
Agent and any such other Lender preparing a Report harmless from and against,
the claims, actions, proceedings, damages, costs, expenses and other amounts
(including Attorney Costs) incurred by the Agent and any such other Lender
preparing a Report as the direct or indirect result of any third parties who
might obtain all or part of any Report through the indemnifying Lender.
12.19 Relation Among Lenders. The Lenders are not partners or co-venturers, and
no Lender shall be liable for the acts or omissions of, or (except as otherwise
set forth herein in case of the Agent) authorized to act for, any other Lender.
ARTICLE 13
MISCELLANEOUS
13.1 No Waivers; Cumulative Remedies. No failure by the Agent or any Lender to
exercise any right, remedy, or option under this Agreement or any present or
future supplement thereto, or in any other agreement between or among the
Borrowers and the Agent and/or any Lender, or delay by the Agent or any Lender
in exercising the same, will operate as a waiver thereof. No waiver by the Agent
or the Lenders on any occasion shall affect or diminish the Agent's and each
Lender's rights thereafter to require strict performance by the Borrowers of any
provision of this Agreement. The Agent's and each Lender's rights under this
Agreement will be cumulative and not exclusive of any other right or remedy
which the Agent or any Lender may have.
13.2 Severability. The illegality or unenforceability of any provision of this
Agreement or any Loan Document or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
13.3 Governing Law; Choice of Forum; Service of Process.
--------------------------------------------------
(a) IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND THE FINAL
ORDER, THE FINAL ORDER SHALL CONTROL. THIS AGREEMENT SHALL BE INTERPRETED AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH
THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF ILLINOIS; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT MAY BE BROUGHT IN THE BANKRUPTCY COURT OR IN THE COURTS OF THE
STATE OF ILLINOIS OR OF THE UNITED STATES OF AMERICA LOCATED IN XXXX COUNTY,
ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
BORROWERS, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. NOTWITHSTANDING THE FOREGOING: (1) THE AGENT AND THE LENDERS
SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY BORROWER OR
ITS PROPERTY IN THE COURTS OF ANY OTHER COMPETENT JURISDICTION NECESSARY OR
APPROPRIATE IN ORDER TO EXERCISE ANY RIGHTS OR REMEDIES, AND (2) EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
THOSE JURISDICTIONS.
(c) EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT
AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY FACSIMILE OR BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER
REPRESENTATIVE AT ITS ADDRESS SET FORTH IN SECTION 13.8 AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF RECEIPT OR FIVE (5) DAYS
AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS POSTAGE PREPAID.
NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR THE LENDERS TO
SERVE LEGAL PROCESS BY ANY OTHER MANNER PERMITTED BY LAW.
13.4 WAIVER OF JURY TRIAL. THE BORROWERS, THE LENDERS AND THE AGENT EACH
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
BORROWERS, THE LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
13.5 Survival of Representations and Warranties. All of the Borrowers'
representations and warranties contained in this Agreement shall survive the
execution, delivery, and acceptance thereof by the parties, notwithstanding any
investigation by the Agent or the Lenders or their respective agents.
13.6 [Intentionally Omitted.]
---------------------
13.7 Fees and Expenses. The Borrowers, jointly and severally, agree to pay to
the Agent, for its benefit, on demand, all reasonable costs and out-of-pocket
expenses that Agent pays or incurs in connection with the negotiation,
preparation, syndication, consummation, administration, enforcement, and
termination of this Agreement or any of the other Loan Documents, including: (a)
Attorney Costs; (b) reasonable costs and expenses (including reasonable
attorneys' and paralegals' fees and disbursements) for any amendment,
supplement, waiver, consent, or subsequent closing in connection with the Loan
Documents and the transactions contemplated thereby; (c) reasonable costs and
expenses of lien and title searches; (d) sums paid or incurred to pay any amount
or take any action required of the Borrowers under the Loan Documents that any
Borrower fails to pay or take; (e) reasonable costs of inspections, and
verifications of the Borrowers' properties and assets, including travel,
lodging, and meals for inspections of the Borrowers' properties and assets and
the Borrowers' operations by the Agent plus the Agent's then customary charge
for field examinations and audits and the preparation of reports thereof (such
charge is currently $750 per day (or portion thereof) for each agent or employee
of the Agent with respect to each field examination or audit); (f) reasonable
costs and out-of-pocket expenses of forwarding loan proceeds and collecting
checks and other items of payment; and (g) reasonable costs and expenses
(including Attorneys' Costs) paid or incurred to obtain payment of the
Obligations and otherwise enforce the provisions of the Loan Documents, or to
defend any claims made or threatened against the Agent or any Lender arising out
of the transactions contemplated hereby (including preparations for and
consultations concerning any such matters). The foregoing shall not be construed
to limit any other provisions of the Loan Documents regarding costs and expenses
to be paid by the Borrowers. All of the foregoing costs and expenses shall be
payable on the third Business Day following notification by the Agent to the
Borrower of the amount thereof and may be charged to the Borrowers' Loan Account
as Revolving Loans as described in Section 3.7 if not paid on or before 12:00
noon (Chicago, Illinois time) on such date.
13.8 Notices. Except as otherwise provided herein, all notices, demands and
requests that any party is required or elects to give to any other shall be in
writing, or by a telecommunications device capable of creating a written record,
and any such notice shall become effective (a) upon personal delivery thereof,
including, but not limited to, delivery by overnight mail and courier service,
(b) four (4) days after it shall have been mailed by United States mail, first
class, certified or registered, with postage prepaid, or (c) in the case of
notice by such a telecommunications device, when properly transmitted, in each
case addressed to the party to be notified as follows:
If to the Agent or to the Bank:
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Business Credit-Account Executive
Telecopy No.: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
and
Xxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
If to any Borrower, to the Borrower Representative:
Xxxxx Corning
Xxxxx Corning World Headquarters
Xxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attention: Treasurer
Telecopy No.: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
Failure or delay in delivering copies of any notice, demand, request, consent,
approval, declaration or other communication to the persons designated above to
receive copies shall not adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
13.9 Waiver of Notices. Unless otherwise expressly provided herein, the
Borrowers waive presentment, and notice of demand or dishonor and protest as to
any instrument, notice of intent to accelerate the Obligations and notice of
acceleration of the Obligations, as well as any and all other notices to which
any Borrower might otherwise be entitled. No notice to or demand on the
Borrowers which the Agent or any Lender may elect to give shall entitle the
Borrowers to any or further notice or demand in the same, similar or other
circumstances.
13.10 Binding Effect. The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective representatives, successors, and assigns
of the parties hereto; provided, however, that no interest herein may be
assigned by any Borrower without prior written consent of the Agent and each
Lender. The rights and benefits of the Agent and the Lenders hereunder shall, if
such Persons so agree, inure to any party acquiring any interest in the
Obligations or any part thereof in accordance with the terms of Section 11.2.
13.11 Indemnity of the Agent and the Lenders by the Borrowers.
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(a) The Borrowers, jointly and severally, agree to defend, 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 and the termination, resignation or replacement of the
Agent or replacement of any Lender) be imposed on or incurred by 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, any other Loan Document, or the Loans or
the use of the proceeds thereof, whether or not any Indemnified Person is a
party thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided, that no Borrower shall have any obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities 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.
(b) The Borrowers, jointly and severally, agree to indemnify, defend and hold
harmless the Agent and the Lenders from any loss or liability imposed upon or
incurred by any such Person directly or indirectly arising out of the use,
generation, manufacture, production, storage, release, threatened release,
discharge, disposal or presence of a hazardous substance relating to any
Borrower's operations, business or property. This indemnity will apply whether
the hazardous substance is on, under or about any Borrower's property or
operations or property leased to any Borrower. The indemnity includes but is not
limited to Attorneys Costs. The indemnity extends to the Agent and the Lenders,
their parents, affiliates, Subsidiaries and all of their directors, officers,
employees, agents, successors, attorneys and assigns. "Hazardous substances"
means any substance, material or waste that is or becomes designated or
regulated as "toxic," "hazardous," "pollutant," or "contaminant" or a similar
designation or regulation under any federal, state or local law (whether under
common law, statute, regulation or otherwise) or judicial or administrative
interpretation of such, including petroleum or natural gas. This indemnity will
survive repayment of all other Obligations.
13.12 Limitation of Liability. NO CLAIM MAY BE MADE BY ANY BORROWER, ANY LENDER
OR OTHER PERSON AGAINST THE AGENT, ANY LENDER, OR THE AFFILIATES, DIRECTORS,
OFFICERS, EMPLOYEES, OR AGENTS OF ANY OF THEM FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT
OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION
OR EVENT OCCURRING IN CONNECTION THEREWITH, AND ANY BORROWER AND EACH LENDER
HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON ANY CLAIM FOR SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS
FAVOR.
13.13 Final Agreement. This Agreement and the other Loan Documents are intended
by the Borrowers, the Agent and the Lenders to be the final, complete, and
exclusive expression of the agreement between them. This Agreement supersedes
any and all prior oral or written agreements relating to the subject matter
hereof.
13.14 Counterparts. This Agreement may be executed in any number of
counterparts, and by the Agent, each Lender and each Borrower in separate
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same agreement; signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that
all signature pages are physically attached to the same document.
13.15 Captions. The captions contained in this Agreement are for convenience of
reference only, are without substantive meaning and should not be construed to
modify, enlarge, or restrict any provision.
13.16 Right of Setoff. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to any Borrower, any such notice being waived by the
Borrowers to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Lender to or for
the credit or the account of any Borrower 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 Borrower Representative and the Agent after
any such set-off and application made by such Lender; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE ANY
RIGHT OF SET-OFF, BANKER'S LIEN, OR THE LIKE AGAINST ANY DEPOSIT ACCOUNT OR
PROPERTY OF ANY BORROWER HELD OR MAINTAINED BY SUCH LENDER WITHOUT THE PRIOR
WRITTEN UNANIMOUS CONSENT OF THE LENDERS.
13.17 Confidentiality.
---------------
(a) The Borrowers hereby consent that the Agent and each Lender may issue and
disseminate to the public general information describing the credit
accommodation entered into pursuant to this Agreement, including the names and
addresses of the Borrowers and a general description of the Borrowers' business
and may use the Borrowers' names in advertising and other promotional material.
(b) Each of the Agent and each Lender severally agrees to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all information provided to the Agent or such Lender by or on behalf of the
Borrowers, under this Agreement or any other Loan Document, except to the extent
that such information (i) was or becomes generally available to the public other
than as a result of disclosure by the Agent or such Lender or by a Person to
whom the Agent or such Lender has delivered such information, or (ii) was or
becomes available on a nonconfidential basis from a source other than the
Borrowers, provided that such source is not bound by a confidentiality agreement
with, or duty of confidentiality owing to, the Borrowers known to the Agent or
such Lender; provided, however, that the Agent and any Lender may disclose such
information (1) at the request or pursuant to any requirement of any
Governmental Authority to which the Agent or such Lender is subject or in
connection with an examination of the Agent or such Lender by any such
Governmental Authority; (2) pursuant to subpoena or other court process; (3)
when required to do so in accordance with the provisions of any applicable
Requirement of Law; (4) to the extent reasonably required in connection with any
litigation or proceeding (including, but not limited to, any bankruptcy
proceeding) to which the Agent, any Lender or their respective Affiliates may be
party; (5) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (6) to the Agent's or
such Lender's independent auditors, accountants, attorneys and other
professional advisors, each of whom shall also be bound by the confidentiality
obligations set forth herein; (7) to any prospective Participant or Assignee
under any Assignment and Acceptance, actual or potential, provided that such
prospective Participant or Assignee agrees in writing to keep such information
confidential to the same extent required of the Agent and the Lenders hereunder;
(8) as expressly permitted under the terms of any other document or agreement
regarding confidentiality to which any Borrower is party or is deemed party with
the Agent or such Lender, and (9) to its Affiliates who have a need to know such
information (as determined by the Agent or such Lender in good faith), each of
whom shall also be bound by the confidentiality obligations set forth herein.
13.18 Conflicts with Other Loan Documents. Unless otherwise expressly provided
in this Agreement (or in another Loan Document by specific reference to the
applicable provision contained in this Agreement), if any provision contained in
this Agreement conflicts with any provision of any other Loan Document, the
provision contained in this Agreement shall govern and control.
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
BORROWERS:
XXXXX CORNING
By:
Title:
CDC CORPORATION
By:
Title:
ENGINEERED YARNS AMERICA, INC.
By:
Title:
FALCON FOAM CORPORATION
By:
Title:
INTEGREX
By:
Title:
FIBREBOARD CORPORATION
By:
Title:
INTEGREX VENTURES LLC
By:
Title:
EXTERIOR SYSTEMS, INC.
By:
Title:
INTEGREX PROFESSIONAL SERVICES LLC
By:
Title:
INTEGREX SUPPLY CHAIN SOLUTIONS LLC
By:
Title:
INTEGREX TESTING SYSTEMS LLC
By:
Title:
HOMEXPERTS LLC
By:
Title:
XXXXX-XXXXXXX FIBERGLASS TECHNOLOGY INC.
By:
Title:
XXXXX CORNING HT, INC.
By:
Title:
XXXXX-XXXXXXX OVERSEAS HOLDINGS, INC.
By:
Title:
XXXXX CORNING REMODELING SYSTEMS, LLC
By:
Title:
SOLTECH, INC.
By:
Title:
AGENT:
Bank of America, N.A., as the Agent
By:
Xxxxxx X. Xxxxxx
Title: Senior Vice President
"LENDERS"
Bank of America, N.A., as a Lender
By:
Xxxxxx X. Xxxxxx
Title: Senior Vice President
ANNEX A
to
Credit Agreement
Definitions
Capitalized terms used in the Loan Documents shall have the
following respective meanings (unless otherwise defined therein), and all
section references in the following definitions shall refer to sections of the
Agreement:
"Accounts" means, with respect to any Person, all of such
Person's now owned or hereafter acquired or arising accounts, as defined in the
UCC, including any rights to payment for the sale or lease of goods or rendition
of services, whether or not they have been earned by performance.
"Account Debtor" means each Person obligated in any way on or
in connection with an Account.
"ACH Transactions" means any cash management or related
services including the automatic clearing house transfer of funds by the Bank
for the account of any Borrower pursuant to agreement or overdrafts.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person or which owns, directly or indirectly, ten percent
(10%) or more of the outstanding equity interest of 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, by contract, or otherwise.
"Affiliated Entity" means a Subsidiary, an Affiliate, or a
Person that uses technology supplied by, or whose operations are supervised by,
the Company or its Subsidiaries or Affiliates.
"Administration Fee" has the meaning specified in Section 2.4.
"Agent" means the Bank, solely in its capacity as agent
for the Lenders, and any successor agent.
"Agent-Related Persons" means the Agent, together with its
Affiliates, and the officers, directors, employees, agents and attorneys-in-fact
of the Agent and such Affiliates.
"Aggregate Revolver Outstandings" means, at any date of
determination: the sum of (a) the unpaid principal balance of Revolving Loans,
(b) the aggregate amount of Pending Revolving Loans, (c) one hundred percent
(100%) of the aggregate undrawn face amount of all outstanding Letters of
Credit, and (d) the aggregate amount of any unpaid reimbursement obligations in
respect of Letters of Credit.
"Agreement" means the Credit Agreement to which this Annex A
is attached, as from time to time amended, modified or restated.
"Applicable L/C Margin" means the Applicable Margin with
respect to LIBOR Rate Loans as from time to time in effect, plus, during the
continuance of an Event of Default, if the Agent or the Required Lenders in
their discretion so elect, 2% per annum.
"Applicable Margin" means
(i) with respect to Base Rate Loans and all other
Obligations (other than LIBOR Rate Loans), 0%;
and
(ii) with respect to LIBOR Rate Loans, .75%.
The Applicable Margins with respect to LIBOR Rate Loans shall
be adjusted (up or down) prospectively on the first day of each calendar month,
commencing December 1, 2000, based upon the Average Daily Outstanding Exposure
during the immediately preceding calendar month, as calculated by the Agent.
Adjustments in Applicable Margins shall be determined by reference to the
following grid:
------------------------------------------------ ----------------------------------
Average Daily Level of
Outstanding Exposure Applicable Margins:
------------------------------------------------ ----------------------------------
------------------------------------------------ ----------------------------------
>$300,000,000 2.00%
------------------------------------------------ ----------------------------------
------------------------------------------------ ----------------------------------
>$200,000,000, but < $300,000,000 1.50%
-
------------------------------------------------ ----------------------------------
------------------------------------------------ ----------------------------------
>$100,000,000, but < $200,000,000 1.00%
-
------------------------------------------------ ----------------------------------
------------------------------------------------ ----------------------------------
< $100,000,000 .75%
-
------------------------------------------------ ----------------------------------
"Assignee" has the meaning specified in Section 11.2(a).
"Assignment and Acceptance" has the meaning specified in
Section 11.2(a).
"Attorney Costs" means and includes all reasonable fees,
expenses and disbursements of any law firm or other counsel engaged by the
Agent, excluding allocated costs and expenses of internal legal services of the
Agent.
"Availability" means, at any time (a) the lesser of (i) the
Maximum Revolver Amount or (ii) the Borrowing Base as reflected in the most
recent Borrowing Base Certificate delivered to the Agent pursuant to this
Agreement (as such amount may be reduced by Reserves established by the Agent
following the date of such Borrowing Base Certificate) minus (b) the Aggregate
Revolver Outstandings.
"Average Daily Outstanding Exposure" means, for any period, an
amount equal to the average daily Aggregate Revolver Outstandings (excluding any
Pending Revolving Loans) during such period.
"Bank" means Bank of America, N.A., a national banking
association, or any successor entity thereto.
"Bank Products" means any one or more of the following types
of services or facilities extended to any Borrower by the Bank or any affiliate
of the Bank in reliance on the Bank's agreement to indemnify such affiliate: (i)
credit cards; (ii) ACH Transactions; (iii) cash management, including controlled
disbursement services; and (iv) Hedge Agreements.
"Bank Product Reserves" means all reserves which the Agent
from time to time establishes in its reasonable discretion for the Bank Products
then provided or outstanding.
"Bankruptcy Case" has the meaning specified in the recitals to
this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code
(11 X.X.X.xx. 101 et seq.).
"Bankruptcy Court" means the United States Bankruptcy Court
for the District of Delaware, or any other court having jurisdiction over the
Bankruptcy Cases from time to time, including, without limitation, the United
States District Court for the District of Delaware if and to the extent it
withdraws the reference with respect to the Bankruptcy Cases, any part thereof,
or any matter or proceeding therein.
"Base Rate" means, for any day, the rate of interest in effect
for such day as publicly announced from time to time by the Bank in Charlotte,
North Carolina as its "prime rate" (the "prime rate" being a rate set by the
Bank based upon various factors including the Bank'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). Any change in the prime rate announced by the Bank shall take effect at
the opening of business on the day specified in the public announcement of such
change. Each Interest Rate based upon the Base Rate shall be adjusted
simultaneously with any change in the Base Rate.
"Base Rate Loans" means the Base Rate Revolving Loans.
---------------
"Base Rate Revolving Loan" means a Revolving Loan during any
period in which it bears interest based on the Base Rate.
"Borrower" and "Borrowers" have the meanings set forth in the
Preamble to the Agreement.
"Borrower Representative" has the meaning set forth in Section
1.2(c).
"Borrowing" means a borrowing hereunder consisting of
Revolving Loans made on the same day by the Lenders to the Borrowers or by Bank
in the case of a Borrowing funded by Non-Ratable Loans or by the Agent in the
case of a Borrowing consisting of an Agent Advance, or the issuance of Letters
of Credit hereunder.
"Borrowing Base" means, at any time, an amount equal to (a)
the sum of (A) up to eighty-five percent (85%) of the Net Amount of Eligible
Accounts; plus (B) up to sixty percent (60%) of the value of Eligible Inventory;
minus (b) Reserves from time to time established by the Agent in its reasonable
credit judgment; provided that the aggregate Revolving Loans advanced against
Eligible Inventory shall not exceed the Maximum Inventory Loan Amount.
"Borrowing Base Availability" means, at any time, an amount
calculated in the manner set forth in the definition of "Availability", but
without taking into account the limitation on Availability imposed by the
Maximum Revolver Amount.
"Borrowing Base Certificate" means a certificate by a
Responsible Officer of the Borrower Representative, substantially in the form of
Exhibit B (or another form reasonably acceptable to the Agent) setting forth the
calculation of the Borrowing Base, including a calculation of each component
thereof, all in such detail as shall be reasonably satisfactory to the Agent.
All calculations of the Borrowing Base in connection with the preparation of any
Borrowing Base Certificate shall originally be made by the Borrower
Representative and certified to the Agent; provided, that the Agent shall have
the right to review and adjust, in the exercise of its reasonable credit
judgment, any such calculation to the extent that such calculation is not in
accordance with this Agreement.
"Business Day" means (a) any day that is not a Saturday,
Sunday, or a day on which banks in Chicago, Illinois, Charlotte, North Carolina
or Toledo, Ohio are required or permitted to be closed, and (b) with respect to
all notices, determinations, fundings and payments in connection with the LIBOR
Rate or LIBOR Rate Loans, any day that is a Business Day pursuant to clause (a)
above and that is also a day on which trading in Dollars is carried on by and
between banks in the London interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other law,
rule or regulation, whether or not having the force of law, in each case,
regarding capital adequacy of any bank or of any corporation controlling a bank.
"Capital Lease" means, with respect to any Person, any lease
of property by such Person which, in accordance with GAAP, should be reflected
as a capital lease on the balance sheet of the such Person.
"Carve-Out" has the meaning specified in Section 7.25.
"Carve-Out Event" has the meaning specified in Section 7.25.
"Cash Equivalents" means (a) direct obligations of, or
obligations guaranteed by, the United States of America or any agency thereof,
(b) commercial paper issued in the United States of America and rated at least
A-1 or P-1 by at least one nationally recognized rating organization, (c)
certificates of deposit issued by or eurodollar deposits made with any Lender,
any Affiliate of any Lender, or any bank or trust company which has (or the
parent of which has) capital, surplus and undivided profits aggregating at least
$100,000,000 (or the equivalent amount in another currency), (d) drafts accepted
by any bank or trust company referred to in clause (c) above or any other
negotiable instrument guaranteed or endorsed with full recourse by any such bank
or trust company, (e) repurchase agreements with respect to any of the foregoing
types of securities described in clauses (a) and (b) above, (f) investments in
money market funds substantially all of whose assets are comprised of securities
of the types described in clause (a) through (e) above, (g) obligations the
return with respect to which is excluded from gross income under Section 103 of
the Code, with a maturity of not more than six months or with the right of the
holder to put such obligations for purchase at par upon not more than seven
days' notice and which are rated at least A-1 or P-1 by at least one nationally
recognized rating organization, (h) (A) tax free money market funds that invest
solely in the securities described in clause (g) above or (B) money market
preferred municipal bond fund which have a term of not more than seven days and
which are rated at least AAA or the equivalent thereof by Standard & Poor's
Ratings Group or at least Aaa or the equivalent thereof by Xxxxx'x Investors
Service, Inc., and (i) any other securities reasonably acceptable to the Agent
which are rated at least A-1 or P-1 by at least one nationally recognized rating
organization, or which are of an equivalent credit quality in the reasonable
judgment of the Agent, provided that (i) each such obligation, certificate of
deposit, draft, investment, security and instrument (including those subject to
repurchase agreements) matures within one year after it is acquired and (ii)
each item of such commercial paper (including those subject to repurchase
agreements) matures within six months after it is acquired by the Borrower or
any Other Subsidiary.
"Change of Control" means any of the following: (a) any Person
or group of Persons (within the meaning of the Securities Exchange Act of 1934,
as amended) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of 50.1% or more of the issued and outstanding
shares of capital stock of the Company having the right to vote for the election
of directors of the Company under ordinary circumstances; (b) during any period
of twelve consecutive calendar months, individuals who at the beginning of such
period constituted the board of directors of the Company (together with any new
directors whose election by the board of directors of the Company or whose
nomination for election by the stockholders of the Company was approved by a
vote of at least a majority of the directors then still in office who either
were directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason other than death
or disability to constitute a majority of the directors then in office; (c) the
Company ceases to own and control, directly or indirectly, all of the economic
and voting rights associated with all of the outstanding capital stock of each
other Borrower other than Integrex; and (e) the Company ceases to own and
control all of the economic and voting rights associated with at least 96% of
the outstanding capital stock of Integrex.
"Closing Date" means the date of the Agreement.
"Code" means the Internal Revenue Code of 1986.
"Committee" means, collectively, the official committee of
unsecured creditors appointed in the Bankruptcy Cases and the official committee
of asbestos claimants appointed in the Bankruptcy Cases.
"Commitment" or "Revolving Loan Commitment" means, at any time
with respect to a Lender, the principal amount set forth beside such Lender's
name under the heading "Commitment" on Schedule 1.1 attached to the Agreement or
on the signature page of the Assignment and Acceptance pursuant to which such
Lender became a Lender hereunder in accordance with the provisions of Section
11.2, as such Commitment may be adjusted from time to time in accordance with
the provisions of Section 11.2, and "Commitments" means, collectively, the
aggregate amount of the commitments of all of the Lenders.
"Company" has the meaning set forth in the Preamble to this
Agreement.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period, plus
(i) any amount deducted (or in the case of extraordinary gains, minus any
amount added) in the computation of Consolidated Net Income for such period for
(A) depreciation and amortization expense, (B) provisions for all federal, state
and local income and franchise taxes, (C) consolidated interest expense, (D) any
extraordinary gains or losses, (E) amortization of transaction costs incurred
with respect to the merger and recapitalization of the Company effected pursuant
to the Plan of Recapitalization and Agreement of Merger dated as of August 28,
1986 between Xxxxx-Xxxxxxx Recap Corp. and the Company, (F) additions to
reserves with respect to actions, suits or proceedings against the Company or
any Subsidiary with respect to claims arising out of the use of or exposure to
asbestos products, (G) any non-cash expenses, non-cash losses or other non-cash
charges resulting from the impairment or write-down in the valuation of any
assets, (H) any non-recurring charge, reorganization cost or restructuring
charge, (I) expenses arising from claims in the Reorganization Cases for allowed
professional fees and disbursements, the expenses of members of any statutory
committees appointed in the Reorganization Cases, trustee fees and fees payable
to the Clerk of the Bankruptcy Court, (J) expenses, losses and other charges in
respect of employee retention bonuses and other payments approved by the
Bankruptcy Court, (K) non-cash-losses or gains arising from the freezing or
termination of any plan or other employee benefit or welfare plan and (L) losses
or gains arising from asset dispositions, minus
(ii) any amount added in the computation of Consolidated Net Income for
such period for reductions in the reserves referred to in clause (i)(F), plus
(iii) to the extent deducted in the computation of Consolidated Net Income
for such period, the amount of any restructuring or other reserves
(other than reserves for uncollectible accounts receivable and other
reserves created in the ordinary course of business) established by the
Company and its consolidated Subsidiaries, minus
(iv) to the extent added in the computation of Consolidated Net Income for
such period, the amount of any reductions in the reserves referred to
in the preceding clause (iii).
"Consolidated Net Income" means, for any period, the amount of
consolidated net income (or net loss) of the Company and the consolidated
Subsidiaries for such period (taken as a cumulative whole).
"Continuation/Conversion Date" means the date on which a Loan
is converted into or continued as a LIBOR Rate Loan.
"Credit Support" has the meaning specified in Section 1.4(a).
"Debt" means, without duplication, all liabilities,
obligations and indebtedness of any Borrower or any Other Subsidiary to any
Person, of any kind or nature, now or hereafter owing, arising, due or payable,
howsoever evidenced, created, incurred, acquired or owing, whether primary,
secondary, direct, contingent, fixed or otherwise, consisting of indebtedness
for borrowed money or the deferred purchase price of property, excluding trade
payables, but including (a) all Obligations; (b) all obligations and liabilities
of any Person secured by any Lien on any Borrower's or any Other Subsidiary's
property, even though such Borrower or Other Subsidiary shall not have assumed
or become liable for the payment thereof; provided, however, that all such
obligations and liabilities which are limited in recourse to such property shall
be included in Debt only to the extent of the book value of such property as
would be shown on a balance sheet of any Borrower or any Other Subsidiary
prepared in accordance with GAAP; (c) all obligations or liabilities created or
arising under any Capital Lease or conditional sale or other title retention
agreement with respect to property used or acquired by any Borrower or any Other
Subsidiary, even if the rights and remedies of the lessor, seller or lender
thereunder are limited to repossession of such property; provided, however, that
all such obligations and liabilities which are limited in recourse to such
property shall be included in Debt only to the extent of the book value of such
property as would be shown on a balance sheet of any Borrower or any Other
Subsidiary prepared in accordance with GAAP; and (d) all obligations and
liabilities under Guaranties.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured, waived, or
otherwise remedied during such time) constitute an Event of Default.
"Default Rate" means a fluctuating per annum interest rate at
all times equal to the sum of (a) the otherwise applicable Interest Rate plus
(b) two percent (2%) per annum. Each Default Rate shall be adjusted
simultaneously with any change in the applicable Interest Rate.
"Defaulting Lender" has the meaning specified in Section
12.15(c).
"Designated Account" has the meaning specified in Section
1.2(c).
"Distribution" means, in respect of any corporation: (a) the
payment or making of any dividend or other distribution of property in respect
of capital stock (or any options or warrants for, or other rights with respect
to, such stock) of such corporation, other than dividends or distributions in
capital stock (or any options or warrants for such stock) of the same class; or
(b) the redemption or other acquisition by such corporation of any capital stock
(or any options or warrants for such stock) of such corporation.
"DOL" means the United States Department of Labor or any
successor department or agency.
"Dollar" and "$" means dollars in the lawful currency of the
United States. Unless otherwise specified, all payments under the Agreement
shall be made in Dollars.
"Eligible Accounts" means all Accounts owned by the Borrowers
except for any Account:
(a) with respect to which more than 90 days have elapsed since
the date of the original invoice therefor or which is more than 60 days past
due;
(b) with respect to which any of the
representations, warranties, covenants, and agreements contained in Section
7.26 are incorrect or have been breached;
(c) with respect to which Account, in whole or in part, a
check, promissory note, draft, trade acceptance or other instrument for the
payment of money has been received, presented for payment and returned
uncollected for any reason;
(d) which represents a progress billing (as hereinafter
defined) or as to which the applicable Borrower has extended the time for
payment without the consent of the Agent; for the purposes hereof, "progress
billing" means any invoice for goods sold or leased or services rendered under a
contract or agreement pursuant to which the Account Debtor's obligation to pay
such invoice is conditioned upon the applicable Borrower's completion of any
further performance under the contract or agreement;
(e) with respect to which any one or more of the following
events has occurred to the Account Debtor on such Account: the filing by or
against the Account Debtor of a request or petition for liquidation,
reorganization, arrangement, adjustment of debts, adjudication as a bankrupt,
winding-up, or other relief under the bankruptcy, insolvency, or similar laws of
the United States, any state or territory thereof, or any foreign jurisdiction,
now or hereafter in effect; the making of any general assignment by the Account
Debtor for the benefit of creditors; the appointment of a receiver or trustee
for the Account Debtor or for any of the assets of the Account Debtor,
including, without limitation, the appointment of or taking possession by a
"custodian," as defined in the Bankruptcy Code; the institution by or against
the Account Debtor of any other type of insolvency proceeding (under the
bankruptcy laws of the United States or otherwise) or of any formal or informal
proceeding for the dissolution or liquidation of, settlement of claims against,
or winding up of affairs of, the Account Debtor; the sale, assignment, or
transfer of all or any material part of the assets of the Account Debtor (to the
extent the Borrowers have actual knowledge thereof); the nonpayment generally by
the Account Debtor of its debts as they become due; or the cessation of the
business of the Account Debtor as a going concern (to the extent the Borrowers
have actual knowledge thereof);
(f) if fifty percent (50%) or more of the aggregate Dollar
amount of outstanding Accounts owed at such time by the Account Debtor thereon
is classified as ineligible under clause (a) above;
(g) owed by an Account Debtor which: (i) does not maintain a
principal place of business in the United States of America or Canada (other
than the Province of Newfoundland); or (ii) is not organized under the laws of
the United States of America or Canada or any state or province thereof (unless
otherwise notified by the Agent, the Borrowers may rely on "xxxx to" and "ship
to" instructions from Account Debtors in determining which Accounts are
ineligible pursuant to the criteria in this clause (ii) and clause (i) above);
or (iii) is the government of any foreign country or sovereign state, or of any
state, province, municipality, or other political subdivision thereof, or of any
department, agency, public corporation, or other instrumentality thereof; except
to the extent that such Account is secured or payable by a letter of credit
reasonably satisfactory to the Agent in its discretion;
(h) owed by an Account Debtor which is an Affiliate
or employee of the Company or any of its Subsidiaries;
(i) that is subject to any Lien whatsoever (other than
Permitted Liens imposed by operation of law provided that such Permitted Liens
are, at the election of the Agent, subject to Reserves) or which is not subject
to the Superpriority Administrative Claim in favor of the Agent for the benefit
of the Lenders;
(j) owed by an Account Debtor to which any Borrower or any of
its Subsidiaries, is indebted in any way, or which is subject to any right of
setoff or recoupment by the Account Debtor, unless the Account Debtor has
entered into an agreement acceptable to the Agent to waive setoff rights; or if
the Account Debtor thereon has disputed liability or made any claim with respect
to any other Account due from such Account Debtor; but in each such case only to
the extent of such indebtedness, setoff, recoupment, dispute, or claim;
(k) which represents a sale on a xxxx-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or other repurchase or
return basis (except with respect to an Account in connection with which the
Account Debtor is entitled to return Inventory solely on the basis of the
quality of such Inventory);
(l) which is evidenced by a promissory note or other
instrument or by chattel paper;
(m) with respect to which the Account Debtor is located in any
state requiring the filing of a Notice of Business Activities Report or similar
report in order to permit the applicable Borrower to seek judicial enforcement
in such State of payment of such Account, unless such Borrower has qualified to
do business in such state or has filed a Notice of Business Activities Report or
equivalent report for the then current year;
(n) which arises out of a sale not made in the
ordinary course of the applicable Borrower's business; or
(o) with respect to which the goods giving rise to such
Account have not been shipped and delivered to and accepted by the Account
Debtor or the services giving rise to such Account have not been performed by
the applicable Borrower, and, if applicable, accepted by the Account Debtor, or
the Account Debtor has revoked its acceptance of such goods or services.
If any Account at any time ceases to be an Eligible Account,
then such Account shall promptly be excluded from the calculation of Eligible
Accounts.
"Eligible Assignee" means (a) a commercial bank, commercial
finance company or other asset based lender, having total assets in excess of
$1,000,000,000; (b) any Lender listed on the signature page of this Agreement;
(c) any Affiliate of any Lender; and (d) if an Event of Default has occurred and
is continuing, any other Person reasonably acceptable to the Agent that is not a
direct competitor of the Company or any of its consolidated Subsidiaries;
"Eligible Inventory" means all Inventory owned by the
Borrowers, valued at the lower of cost (on a first-in, first-out basis) or
market, except any Inventory:
(a) that is not owned by one of the Borrowers;
(b) that is subject to any Lien whatsoever (other than
Permitted Liens imposed by operation of law provided that such Permitted Liens
are, at the Agent's election, subject to Reserves) or that is not subject to the
Superpriority Administrative Claim in favor of the Agent for the benefit of the
Lenders;
(c) that does not consist of finished goods or raw materials
(other than de minimus amounts of work-in-process that are not separately
accounted for by the Borrowers due to the de minimus nature thereof);
(d) that consists of work-in-process (other than de minimus
amounts of work-in-process that are not separately accounted for by the
Borrowers due to the de minimus nature thereof), samples, prototypes, supplies
not constituting raw materials, or packing and shipping materials;
(e) that is not in good condition, is unmerchantable, or does
not meet all standards imposed by any Governmental Authority, having regulatory
authority over such goods, their use or sale;
(f) that is not currently either usable or salable, at prices
approximating at least cost, in the normal course of the Borrower's business, or
that is slow moving or stale;
(g) that is obsolete or returned or repossessed or used
goods taken in trade;
(h) that is located outside the United States of
America (or that is in-transit from vendors or suppliers);
(i) that is not reflected in the details of the
Borrowers' general ledger reports; or
(j) that is Inventory acquired or accepted by any
Borrower on a consignment or approval basis or that is placed on consignment.
Unless otherwise notified by the Agent, the Borrowers may, in
lieu of excluding individual items of Inventory which would be deemed ineligible
under the criteria set forth in clauses (e), (f) and (g) above, reduce the
aggregate value of Eligible Inventory included in the Borrowing Base by a
reserve in the estimated amount thereof.
If any Inventory at any time ceases to be Eligible Inventory,
such Inventory shall promptly be excluded from the calculation of Eligible
Inventory.
"Environmental Laws" means any and all Applicable Laws (as
defined below) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or safety or the environment, as
now or may at any time hereafter be in effect, including, without limitation,
the Clean Water Act, the Comprehensive Environmental Response, Compensation and
Liability Act, the Superfund Amendment and Reauthorization Act of 1986, the
Emergency Planning and Community Right to Know Act, the Resource Conservation
and Recovery Act, the Safe Drinking Water Act, the Toxic Substances Control Act,
and the Endangered Species Act, together, in each case, with each amendment,
supplement or other modification thereto, the regulations adopted and
publications promulgated thereunder and all substitutions therefor. For purposes
hereof, "Applicable Law" means all applicable provisions of all (a)
constitutions, statutes, treaties, rules, regulations and orders of governmental
bodies, (b) authorizations, consents, approvals, licenses or exemptions of,
registrations and filings with, reports and notices to, all governmental units,
and (c) orders, decisions, judgments and decrees of all courts and arbitrators.
"Equipment" means, with respect to any Person, all of such
Person's now owned and hereafter acquired machinery, equipment, furniture,
furnishings, fixtures, and other tangible personal property (except Inventory),
including embedded software, motor vehicles with respect to which a certificate
of title has been issued, aircraft, dies, tools, jigs, and office equipment, as
well as all of such types of property leased by such Person and all of such
Person's rights and interests with respect thereto under such leases (including,
without limitation, options to purchase); together with all present and future
additions and accessions thereto, replacements therefor, component and auxiliary
parts and supplies used or to be used in connection therewith, and all
substitutes for any of the foregoing, and all manuals, drawings, instructions,
warranties and rights with respect thereto; wherever any of the foregoing is
located.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with any Borrower 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) a withdrawal by any Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal under Section
4062(e) of ERISA, (c) a complete or partial withdrawal by any Borrower or any
ERISA Affiliate from a Multi-employer Plan or notification that a Multi-employer
Plan is in reorganization, (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or 4041A
of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multi-employer Plan, (e) the occurrence of an event or condition which
might reasonably be expected to constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multi-employer Plan, or (f) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon any Borrower or any ERISA Affiliate.
"Event of Default" has the meaning specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Facility Fee" has the meaning specified in Section 2.4.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Bank on such day on such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Budget" means the amount set forth for professional fees
and disbursements expected to be incurred by the Borrowers and statutory
committees in the Bankruptcy Cases as set forth in the Projections.
"Fibreboard Settlement Trust" means the Fibreboard Settlement
Trust established under the Trust Agreement dated December 30, 1996.
"Filing Date" has the meaning set forth in the recitals
hereto.
"Final Order" has the meaning specified in Section 8.2.
"Financial Statements" means, according to the context in
which it is used, the financial statements referred to in Sections 5.2 or 6.5.
"Fiscal Year" means the Borrowers' fiscal year for financial
accounting purposes. The current Fiscal Year of the Borrowers will end on
December 31, 2000.
"Funding Date" means the date on which a Borrowing occurs.
"GAAP" means generally accepted accounting principles and
practices set forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are in effect from time
to time in the United States.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any court and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranty" means, with respect to any Person, all obligations
of such Person which in any manner directly or indirectly guarantee or assure,
or in effect guarantee or assure, the payment or performance of any
indebtedness, dividend or other obligations of any other Person (the "guaranteed
obligations"), or assure or in effect assure the holder of the guaranteed
obligations against loss in respect thereof, including any such obligations
incurred through an agreement, contingent or otherwise: (a) to purchase the
guaranteed obligations or any property constituting security therefor; (b) to
advance or supply funds for the purchase or payment of the guaranteed
obligations or to maintain a working capital or other balance sheet condition;
or (c) to lease property or to purchase any debt or equity securities or other
property or services. The amount of any Guaranty of any guaranteeing Person
shall be deemed to be the lower of (i) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
is made and (ii) the maximum amount for which such guaranteeing Person may be
liable pursuant to the terms of the instrument embodying such Guaranty, unless
such primary obligation and the maximum amount for which such guaranteeing
Person may be liable are not stated or determinable, in which case the amount of
such Guaranty shall be such guaranteeing Person's maximum reasonably anticipated
liability in respect thereof as determined by such guaranteeing Person in good
faith.
"Hedge Agreement" means any and all transactions, agreements
or documents now existing or hereafter entered into, which provides for an
interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging any Person's exposure to fluctuations
in interest or exchange rates, loan, credit exchange, security or currency
valuations or commodity prices.
"Indemnification Liabilities" has the meaning set forth in
Section 13.11.
"Indemnified Person" has the meaning set forth in Section
13.11.
"Interest Period" means, as to any LIBOR Rate Loan, the period
commencing on the Funding Date of such Loan or on the Continuation/Conversion
Date on which the Loan is converted into or continued as a LIBOR Rate Loan, and
ending on the date one, two, three or six months thereafter as selected by the
Borrower Representative in its Notice of Borrowing, in the form attached hereto
as Exhibit D, or Notice of Continuation/Conversion, in the form attached hereto
as Exhibit E, provided that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the following
Business Day unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) no Interest Period shall extend beyond the Stated
Termination Date.
"Interest Rate" means each or any of the interest rates,
including the Default Rate, set forth in Section 2.1.
"Inventory" means, with respect to any Persons all of such
Person's now owned and hereafter acquired inventory, goods and merchandise,
wherever located, to be furnished under any contract of service or held for sale
or lease, all returned goods, raw materials, work-in-process, finished goods
(including embedded software), other materials and supplies of any kind, nature
or description which are used or consumed in such Person's business or used in
connection with the packing, shipping, advertising, selling or finishing of such
goods, merchandise, and all documents of title or other documents representing
them.
"Investments" has the meaning given such term in the
definition of "Restricted Investments".
"IRS" means the Internal Revenue Service and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Xxxxxxx Equipment" means (a) the new manufacturing equipment
acquired by the Xxxxxxx Industrial Development Board or other Persons that are
not Affiliates of the Company for use on the Xxxxxxx Real Estate prior to the
date hereof and (b) associated leasehold improvements made by the Xxxxxxx
Industrial Development Board or other Persons that are not Affiliates of the
Company on the Xxxxxxx Real Estate.
"Xxxxxxx Real Estate" means the approximately 000 xxxxx xx
xxxx xx Xxxxxxx, Xxxxxxxxx and the buildings thereon transferred by the Company
to the Xxxxxxx Industrial Development Board pursuant to the Xxxxxxx transaction
prior to the date hereof.
"Xxxxxxx Transaction" means the transactions consummated prior
to the date hereof pursuant to which (i) the Company transferred the Xxxxxxx
Real Estate to the Xxxxxxx Industrial Development Board ("JIDB") and such
property was leased back to the Company, and (ii) JIDB or other Persons that are
not Affiliates of the Company leased the Xxxxxxx Equipment to the Company.
"Latest Projections" means: (a) on the Closing Date, the
Projections; and (b) thereafter, the projections most recently received by
the Agent pursuant to Section 5.2(f).
"Lender" and "Lenders" have the meanings specified in the
introductory paragraph hereof and shall include the Bank to the extent of any
Non-Ratable Loan outstanding; provided that no such Non-Ratable Loan shall be
taken into account in determining any Lender's Pro Rata Share.
"Letter of Credit" has the meaning specified in Section
1.4(a).
"Letter of Credit Fee" has the meaning specified in Section
2.6.
"Letter of Credit Issuer" means the Bank, any affiliate of the
Bank or any other financial institution that issues any Letter of Credit
pursuant to this Agreement.
"Letter of Credit Subfacility" means $300,000,000.
"LIBOR Interest Payment Date" means, with respect to a LIBOR
Rate Loan, the Termination Date and the last day of each Interest Period
applicable to such Loan or, with respect to each Interest Period of greater than
three months in duration, the last day of the third month of such Interest
Period and the last day of such Interest Period.
"LIBOR Rate" means, for any Interest Period, with respect to
LIBOR Rate Loans, the rate of interest per annum determined pursuant to the
following formula:
LIBOR Rate = Offshore Base Rate
---------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means the rate per annum appearing on
Telerate Page 3750 (or any successor page) as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not available, the Offshore
Base Rate shall be, for any Interest Period, the rate per annum appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates. If for
any reason none of the foregoing rates is available, the Offshore Base Rate
shall be, for any Interest Period, the rate per annum determined by Agent as the
rate of interest at which dollar deposits in the approximate amount of the LIBOR
Rate Loan comprising part of such Borrowing would be offered by the Bank's
London Branch to major banks in the offshore dollar market at their request at
or about 11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period; and
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day applicable to member banks
under regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The LIBOR Rate
for each outstanding LIBOR Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"LIBOR Rate Loans" means the LIBOR Revolving Loans.
"LIBOR Revolving Loan" means a Revolving Loan during any
period in which it bears interest based on the LIBOR Rate.
"Lien" means: (a) any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, or
contract, and including a security interest, charge, claim, or lien arising from
a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, agreement, security agreement, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes; (b) to the
extent not included under clause (a), any reservation, exception, encroachment,
easement, right-of-way, covenant, condition, restriction, lease or other title
exception or encumbrance affecting property; and (c) any contingent or other
agreement to provide any of the foregoing.
"Loan Account" means the loan account of the Borrowers, which
account shall be maintained by the Agent.
"Loan Documents" means this Agreement, the Revolving Loan
Notes, the Final Order, and any other agreements, instruments, and documents
heretofore, now or hereafter evidencing, securing, guaranteeing or otherwise
relating to the Obligations or any other aspect of the transactions contemplated
by this Agreement.
"Loans" means, collectively, all loans and advances provided
for in Article 1.
"Majority Lenders" means at any date of determination Lenders
whose Pro Rata Shares aggregate more than 50% as such percentage is determined
under the definition of Pro Rata Share set forth herein.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) of the Borrowers taken as a whole; (b) a
material impairment of the Borrowers' ability, taken as a whole, to pay any of
the Loans or any of the other Obligations in accordance with the terms of this
Agreement or any other Loan Document; (c) a material adverse effect upon the
Agent's or any Lender's rights and remedies under this Agreement or any other
Loan Agreement; or (d) a material impairment of the validity, extent or priority
of the Superpriority Administrative Claim of the Agent and the Lenders in
respect of the Obligations. For purposes hereof, the filing of the Bankruptcy
Cases on the Filing Date and the existence of pre-petition claims and of
defaults under such pre-petition claims shall not be deemed to constitute a
Material Adverse Effect.
"Maximum Inventory Loan Amount" means $300,000,000.
-----------------------------
"Maximum Revolver Amount" means $500,000,000, as such amount
may be reduced from time to time in accordance with the provisions of Section
3.2.
"Multi-employer Plan" means a "multi-employer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding six (6) years contributed to by any Borrower
or any ERISA Affiliate.
"Net Amount of Eligible Accounts" means, at any time, the
gross amount of Eligible Accounts less sales, excise or similar taxes, and less
returns, discounts, claims, credits, allowances, accrued rebates, offsets,
deductions, counterclaims, disputes and other defenses of any nature at any time
issued, owing, granted, outstanding, available or claimed.
"Non-Ratable Loan" and "Non-Ratable Loans" have the meanings
specified in Section 1.2(h).
"Notes" means Revolving Loan Notes.
-----
"Notice of Borrowing" has the meaning specified in Section
1.2(b).
"Notice of Continuation/Conversion" has the meaning specified
in Section 2.2(b).
"Obligations" means all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts owing by any Borrower to
the Agent and/or any Lender, arising under or pursuant to this Agreement or any
of the other Loan Documents, whether or not evidenced by any note, or other
instrument or document, whether arising from an extension of credit, opening of
a letter of credit, acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect, absolute or contingent, due or to become due,
primary or secondary, as principal or guarantor, and including all principal,
interest, charges, expenses, fees, attorneys' fees, filing fees and any other
sums chargeable to any Borrower hereunder or under any of the other Loan
Documents. "Obligations" includes, without limitation, (a) all debts,
liabilities, and obligations now or hereafter arising from or in connection with
the Letters of Credit and (b) all debts, liabilities and obligations now or
hereafter arising from or in connection with Bank Products.
"Other Subsidiary" means any Subsidiary of the Company
consolidated for purposes of the Financial Statements other than those
Subsidiaries which are Borrowers.
"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" means any Person who shall have been granted the
right by any Lender to participate in the financing provided by such Lender
under this Agreement in accordance with Section 11.2(e), and who shall have
entered into a participation agreement in form and substance satisfactory to
such Lender.
"PBGC" means the Pension Benefit Guaranty Corporation or any
Governmental Authority succeeding to the functions thereof.
"Pending Revolving Loans" means, at any time, the aggregate
principal amount of all Revolving Loans requested in any Notice of Borrowing
received by the Agent which have not yet been advanced.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which any Borrower sponsors,
maintains, or to which it makes, is making, or is obligated to make
contributions, or in the case of a Multi-employer Plan has made contributions at
any time during the immediately preceding five (5) plan years.
"Permitted Intercompany Debt" means (a) unsecured Debt of any
Borrower to any other Borrower, (b) unsecured Debt of any Borrower to any Other
Subsidiary that is subordinated to the Obligations hereunder in an aggregate
outstanding principal amount at any time outstanding not to exceed $25,000,000
for all such Debt; (c) Debt of any Other Subsidiary to any Borrower in an
aggregate outstanding principal amount at any time not to exceed $50,000,000 for
all such Debt and (d) Debt of any Other Subsidiary to any Other Subsidiary.
"Permitted Liens" means, as to any Borrower:
---------------
(a) Liens for taxes, assessments and other governmental
charges not delinquent or statutory Liens for taxes in an amount (not to exceed
$25,000,000 in the aggregate for the Borrowers) provided that the payment of
such taxes which are claimed to be due and payable is being contested in good
faith and by appropriate proceedings diligently pursued and as to which adequate
financial reserves have been established on the applicable Borrower's books and
records and a stay of enforcement of any such Lien is in effect;
(b) Liens consisting of deposits or pledges made in the
ordinary course of business in connection with, or to secure payment of,
obligations under worker's compensation, unemployment insurance, social security
and other similar laws, or to secure the performance of bids, tenders or
contracts (other than for the repayment of Debt) or to secure (or obtain letters
of credit to secure) indemnity, performance or other similar bonds for the
performance of bids, tenders or contracts (other than for the repayment of Debt)
or to secure statutory obligations (other than liens arising under ERISA or
Environmental Liens), leases, purchase, construction or sales contracts and
similar obligations or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds;
(c) Liens securing the claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons, provided
that if any such Lien arises from the nonpayment of such claims or demand when
due, (1) the payment of such claims or demands is being contested in good faith
and by appropriate proceedings diligently pursued and adequate financial
reserves have been established on the applicable Borrower's books and records
and a stay of enforcement of any such Lien is in effect and (2) the nonpayment
of such claims or demands would not reasonably be expected to have a Material
Adverse Effect;
(d) Liens constituting encumbrances in the nature of
reservations, exceptions, encroachments, easements, rights of way, covenants
running with the land, and other similar title exceptions or encumbrances
affecting any Real Estate; provided that they do not in the aggregate materially
detract from the value of the Real Estate or materially interfere with its use
in the ordinary conduct of such Borrower's business;
(e) Liens that arise from judgments and attachments in
connection with court proceedings notwithstanding the terms of the Final Order;
provided, that if the amount of indebtedness secured by all such Liens equals or
exceeds $1,000,000 at any time outstanding in the aggregate for the Borrowers,
the execution or other enforcement of such Liens is not unstayed for more than
30 days and such Liens would not result in an Event of Default; provided,
further, that, after giving effect to the imposition of such Liens and to
Reserves established by the Agent with respect to the indebtedness secured by
such Liens, the sum of Borrowing Base Availability plus all unrestricted cash
and Cash Equivalents of the Borrowers shall be equal to or greater than
$150,000,000;
(f) Liens constituting a lease or sublease granted
by any Borrower to others in the ordinary course of business;
(g) Liens on any asset leased by any Borrower
constituting the interest of the lessor of such asset or secured by the
interest of the lessor of such asset;
(h) Liens created pursuant to an application or reimbursement
agreement pertaining to a commercial letter of credit that encumbers only the
goods, or documents of title covering the goods, that were sold or shipped in
the transaction for which such letter of credit was issued;
(i) Liens in favor of the United States of America, or any
agency, department or other instrumentality thereof, to secure progress, advance
or other payments pursuant to any contract or provision of any statute;
(j) Liens on any asset constituting the unsecured interest of
the holder of a purchase option on such property so long as the disposition of
such property pursuant to such purchase option would not violate Section 7.8;
(k) Liens existing on any asset (other than Accounts or
Inventory or proceeds thereof) prior to the acquisition thereof by any Borrower
but only if such Lien was not created in contemplation thereof and so long as
the obligation secured by such Lien is not in default and such Lien is and will
remain confined to the asset subject to it at the time such asset is acquired
and to fixed improvements thereafter erected on such asset if constituting real
property;
(l) Liens constituting a renewal, extension or replacement of
a Lien constituting a Lien permitted under clause 7.17(b) or clause (k) above,
but only, in the case of each such renewal, extension or replacement Lien, to
the extent that the principal amount of indebtedness secured by such Lien does
not exceed the principal amount of such indebtedness so secured at the time of
the extension, renewal or replacement, and that such renewal, extension or
replacement Lien is limited to all or part of the asset that was subject to the
Lien extended, renewed or replaced and to fixed improvements then or thereafter
erected on any such asset constituting real property;
(m) Liens on the Xxxxxxx Real Estate and the Xxxxxxx
Equipment arising pursuant to the Xxxxxxx Transaction; and
(n) Any other Lien so long as the amount of indebtedness
secured by such Lien and all other Liens not otherwise permitted hereunder does
not exceed $20,000,000 at any time outstanding in the aggregate for the
Borrowers.
"Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, Governmental Authority, or any other
entity.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which any Borrower sponsors or maintains or to which any Borrower
makes, is making, or is obligated to make contributions and includes any Pension
Plan.
"Projections" means the financial projections dated October 2,
2000 of the Company and its consolidated Subsidiaries for the period from
October 1, 2000 through December 31, 2002 and delivered to the Agent prior to
the Closing Date.
"Proprietary Rights" means, with respect to any Person, all of
such Person's now owned and hereafter arising or acquired: licenses, franchises,
permits, patents, patent rights, copyrights, works which are the subject matter
of copyrights, trademarks, service marks, trade names, trade styles, patent,
trademark and service xxxx applications, and all licenses and rights related to
any of the foregoing, and all other rights under any of the foregoing, all
extensions, renewals, reissues, divisions, continuations, and
continuations-in-part of any of the foregoing, and all rights to xxx for past,
present and future infringement of any of the foregoing.
"Pro Rata Share" means, with respect to a Lender, a fraction
(expressed as a percentage), the numerator of which is the amount of such
Lender's Commitment and the denominator of which is the sum of the amounts of
all of the Lenders' Commitments, or if no Commitments are outstanding, a
fraction (expressed as a percentage), the numerator of which is the amount of
Obligations owed to such Lender and the denominator of which is the aggregate
amount of the Obligations owed to the Lenders, in each case giving effect to a
Lender's participation in Non-Ratable Loans and Agent Advances.
"Real Estate" means, with respect to any Person, all of such
Person's now or hereafter owned or leased estates in real property, including,
without limitation, all fees, leaseholds and future interests, together with all
of such Person's now or hereafter owned or leased interests in the improvements
thereon, the fixtures attached thereto and the easements appurtenant thereto.
"Release" means a release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration of a
Contaminant into the indoor or outdoor environment or into or out of any Real
Estate or other property, including the movement of Contaminants through or in
the air, soil, surface water, groundwater or Real Estate or other property.
"Reportable Event" means, any of the events set forth in
Section 4043(c) 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 whose Pro Rata
Shares aggregate more than 66-2/3% as such percentage is determined under the
definition of Pro Rata Share set forth herein.
"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.
"Reserves" means reserves that limit the availability of
credit hereunder, consisting of reserves against Availability, Eligible Accounts
or Eligible Inventory, established by Agent from time to time in the Agent's
reasonable credit judgment. Without limiting the generality of the foregoing,
the following Reserves shall be deemed to be a reasonable exercise of Agent's
credit judgment: (a) Bank Product Reserves, (b) reserves for indebtedness and
other obligations secured by Liens against Accounts or Inventory of any Borrower
(except to the extent such indebtedness and other obligations are secured by
Letters of Credit), (d) Inventory shrinkage, (e) the Carve-Out (less any paid
portion thereof) plus any accrued and unpaid professional fees incurred by the
Borrowers and statutory committees prior to a Carve-Out Event, (g) customs
charges, and (h) dilution.
"Responsible Officer" means any of the following officers of
the Borrower Representative: the chief executive officer, the president, the
chief financial officer, the treasurer or the assistant treasurer, or, in each
case, any other officer having substantially the same authority and
responsibility.
"Restricted Investment" means, as to any Borrower, any
acquisition of property by such Person in exchange for cash or other property,
whether in the form of an acquisition of stock, debt, or other indebtedness or
obligation, or the purchase or acquisition of any other property, or a loan,
advance, capital contribution, or subscription, including in connection with the
organization, creation or acquisition of any Subsidiary (each an "Investment"),
except the following: (a) acquisitions of Equipment and other capital assets in
the ordinary course of business of such Person; (b) acquisitions of Inventory in
the ordinary course of business of such Person; (c) acquisitions of current
assets acquired in the ordinary course of business of such Person; (d)
Investments in Cash Equivalents; (e) Investments by any Borrower in any other
Borrower, (f) extensions of trade credit and prepaid expenses made in the
ordinary course of business, (g) (i) loans to officers of any Borrower in the
ordinary course of business, (ii) loans and advances to employees of any
Borrower for travel, entertainment and relocation expenses in the ordinary
course of business and (iii) loans by any Borrower to employees in connection
with management incentive plans, provided that the aggregate outstanding
principal amount of all such loans and advances made pursuant to this clause (g)
shall not exceed $5,000,000 at any time; (h) Investments outstanding on the
Closing Date and listed on Schedule A-1, (i) Investments not otherwise permitted
hereunder by any Borrower in any Other Subsidiary, provided that after giving
effect to such Investments, the aggregate then outstanding amount of all such
Investments made pursuant to this clause (i) subsequent to the Closing Date
shall not exceed $50,000,000, provided, further, that the conversion of any Debt
owed to any Borrower by any Other Subsidiary into equity of such Other
Subsidiary shall not constitute an additional Investment in such Other
Subsidiary by any Borrower for purposes of the limitation contained in the
immediately proceeding provision, (j) Investments received in connection with
the collection of Accounts in the ordinary course of business, (k) Investments
received as consideration in connection with any asset sale or other disposition
of assets permitted hereunder, (l) loans and advances to suppliers in the
ordinary course of business consistent with past practice but in any event not
in excess of an outstanding principal amount of $20,000,000 at any time, (m)
Investments made by the Fibreboard Settlement Trust in accordance with the terms
of the Fibreboard Settlement Trust, (n) other Investments not otherwise
permitted hereunder constituting proceeds of sales or other dispositions of
assets permitted under clauses (ii) and (x) of Section 7.8, provided that, after
giving effect thereto, the aggregate amount of all such Investments made at any
time after the Closing Date by all Borrowers under this clause (n) shall not
exceed $60,000,000 and (o) other Investments not otherwise permitted hereunder
made by any Borrower, provided that, after giving effect thereto, the aggregate
amount of all such Investments made at any time after the Closing Date by all
Borrowers under this clause (o) shall not exceed $40,000,000.
"Revolving Loans" has the meaning specified in Section 1.2 and
includes each Non-Ratable Loan.
"Revolving Loan Note" and "Revolving Loan Notes" have the
meanings specified in Section 1.2(a)(ii).
"Settlement" and "Settlement Date" have the meanings specified
in Section 12.15(a)(ii).
"Stated Termination Date" means November 15, 2002.
-----------------------
"Subsidiary" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which more than fifty percent (50%) of the voting stock or other equity
interests (in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of the
Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a "Subsidiary" refer to a
Subsidiary of the Company.
"Superpriority Administrative Claim" has the meaning specified
in Section 7.25
"Supporting Obligations" means all supporting obligations as
such term is defined in the UCC.
"Syndication Fee" has the meaning specified in Section 2.4.
"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, capital or franchise taxes) as are imposed on or measured by
the Agent's or each Lender's net income or capital in any jurisdiction (whether
federal, state, local or foreign and including any political subdivision
thereof) under the laws of which such Lender or the Agent, as the case may be,
is organized or maintains a lending office, branch, affiliate or other
connection (other than such connection arising from the Agent or such Lender
having executed, delivered or reformed its obligations or received payment
under, or taken any action to enforce, this Agreement).
"Termination Date" means the earliest to occur of (i) the
Stated Termination Date, (ii) the date the Total Facility is terminated either
by the Borrower pursuant to Section 3.2 or by the Required Lenders pursuant to
Section 9.2, and (iii) the date this Agreement is otherwise terminated for any
reason whatsoever pursuant to the terms of this Agreement.
"Total Facility" has the meaning specified in Section 1.1.
"UCC" means the Uniform Commercial Code, as in effect from
time to time, of the State of Illinois or of any other state the laws of which
are required as a result thereof to be applied in connection with the issue of
perfection of security interests.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current market
value of that Plan's assets, determined in accordance with the assumptions used
for funding the Pension Plan pursuant to Section 412(c) of the Code for the
applicable plan year plus any contributions for the applicable plan year.
"Unused Letter of Credit Subfacility" means an amount equal to
$300,000,000 minus the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit plus, without duplication, (b) the aggregate
unpaid reimbursement obligations with respect to all Letters of Credit.
"Unused Line Fee" has the meaning specified in Section 2.5.
Accounting Terms. Any accounting term used in the Agreement
shall have, unless otherwise specifically provided herein, the meaning
customarily given in accordance with GAAP, and all financial computations
hereunder shall be computed, unless otherwise specifically provided herein, in
accordance with GAAP as consistently applied and using the same method for
inventory valuation as used in the preparation of the Financial Statements. If
any change in generally accepted accounting principles subsequent to the date of
this Agreement is material to either any Borrower or the Lenders for the purpose
of determining the Borrowers' compliance with any covenant contained in this
Agreement, then (A) such change shall not, without the consent of the Required
Lenders, if such change makes such covenant less restrictive, or the Borrower
Representative, if such change makes such covenant more restrictive, be
effective for the calculation of such covenant unless and until an amendment
pursuant to clause (B) below with respect to such change and such covenant
becomes effective, and (B) the Borrowers and the Agent and the Lenders agree to
enter into negotiations, at the request of the Borrowers or the Representative
Lenders, in order to amend such covenant so as equitably to reflect such change
with the desired result that the criteria for evaluating the consolidated
financial condition of the Company and its consolidated Subsidiaries shall be
the same after such change as before such change.
Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof," "herein," "hereunder" and similar
words refer to the Agreement as a whole and not to any particular provision of
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."
(iv) The word "or" is not exclusive.
(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.
(e) The captions and headings of the Agreement and other Loan
Documents are for convenience of reference only and shall not affect the
interpretation of this Agreement.
(f) The Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) For purposes of Section 9.1, a breach of a financial
covenant contained in Sections 7.21 shall be deemed to have occurred as of any
date of determination thereof by the Agent or as of the last day of any
specified measuring period, regardless of when the Financial Statements
reflecting such breach are delivered to the Agent.
(h) The Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agent, the
Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the Agent merely
because of the Agent's or Lenders' involvement in their preparation.
(i) Each reference to any statute shall include all
regulations promulgated thereunder and shall mean such statute as amended and
all statutes intended to replace or supersede the specified statute.
EXHIBIT A
FORM OF REVOLVING LOAN NOTE
EXHIBIT B
FORM OF BORROWING BASE CERTIFICATE
EXHIBIT C
FINANCIAL STATEMENTS
EXHIBIT D
NOTICE OF BORROWING
Date: ______________, 200_
To: Bank of America, N.A. as Agent for the Lenders who are parties to the Post-Petition Credit Agreement
dated as of December __, 2000 (as extended, renewed, amended or restated from time to time, the "Credit
Agreement") among Xxxxx Corning and certain of its Subsidiaries thereto, as Borrowers, certain Lenders
which are signatories thereto and Bank of America, N.A., as Agent
Ladies and Gentlemen:
The undersigned, Xxxxx Corning (the "Borrower
Representative"), refers to the Credit Agreement, the terms defined therein
being used herein as therein defined, and hereby gives you notice irrevocably of
the Borrowing specified below:
1. The Business Day of the proposed Borrowing is , 200 .
----------------------- --
2. The aggregate amount of the proposed Borrowing is $ .
---------------------
3. The Borrowing is to be comprised of $ of Base Rate and $ of
------------ --------------
LIBOR Rate Loans.
4. The duration of the Interest Period for the LIBOR Rate Loans, if any, included in the
Borrowing shall be _____ months.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the proposed
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) The representations and warranties of the Borrowers
contained in the Credit Agreement and the other Loan Documents are correct in
all material respects on and as of such date as though made on and as of such
date, other than any such representation or warranty which relates to a
specified prior date and except to the extent the Agent and the Lenders have
been notified in writing by the Borrower Representative that any representation
or warranty is not correct and the Required Lenders have explicitly waived in
writing compliance with such representation or warranty;
(b) No Default or Event of Default has occurred and is continuing, or would result from
such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate
principal amount of all outstanding Revolving Loans plus the aggregate amount
available for drawing under all outstanding Letters of Credit, to exceed the
Borrowing Base, as reflected in the most recent Borrowing Base Certificate
delivered to the Agent pursuant to the Credit Agreement (as such amount may be
reduced by Reserves established by the Agent following the date of such
Borrowing Base Certificate), or the combined Commitments of the Lenders.
XXXXX CORNING
By:
-----------------------------------------
Title:
-----------------------------------------
EXHIBIT E
NOTICE OF CONTINUATION/CONVERSION
Date: , 200_
----------------
To: Bank of America, N.A. as Agent for the Lenders to the Post-Petition Credit Agreement dated as of
December __, 2000 (as extended, renewed, amended or restated from time to time, the "Credit Agreement")
-----------------
among Xxxxx Corning and certain of its Subsidiaries which are signatories thereto, as Borrowers, certain
Lenders which are signatories thereto and Bank of America, N.A., as Agent
Ladies and Gentlemen:
The undersigned, Xxxxx Corning (the "Borrower
Representative"), refers to the Credit Agreement, the terms defined therein
being used herein as therein defined, and hereby gives you notice irrevocably of
the [conversion] [continuation] of the Loans specified herein, that:
1. The Continuation/Conversion Date is , 200 .
------------ -
2. The aggregate amount of the Loans to be [converted] [continued] is $ .
3. The Loans are to be [converted into] [continued as] [LIBOR Rate] [Base Rate] Loans.
4. The duration of the Interest Period for the LIBOR Rate Loans included in the
[conversion] [continuation] shall be months.
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the proposed
Continuation/Conversion Date, before and after giving effect thereto and to the
application of the proceeds therefrom:
(a) The representations and warranties of the Borrowers
contained in the Credit Agreement and the other Loan Documents are
correct in all material respects on and as of such date as though made
on and as of such date, other than any such representation or warranty
which relates to a specified prior date and except to the extent the
Agent and the Lenders have been notified in writing by the Borrower
Representative that any representation or warranty is not correct and
the Required Lenders have explicitly waived in writing compliance with
such representation or warranty;
(b) Default or Event of Default has occurred and is continuing, or would result from such
proposed [conversion] [continuation]; and
(c) The proposed conversion-continuation will not cause the
aggregate principal amount of all outstanding Revolving Loans plus the aggregate
amount available for drawing under all outstanding Letters of Credit to exceed
the Borrowing Base, as reflected in the most recent Borrowing Base Certificate
delivered to the Agent pursuant to the Credit Agreement (as such amount may be
reduced by Reserves established by the Agent following the date of such
Borrowing Base Certificate), or the combined Commitments of the Lenders.
XXXXX CORNING
By:
-----------------------------------------
Title:
-----------------------------------------
EXHIBIT H
[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of ____________________, 200_ is made between
______________________________ (the "Assignor") and __________________________
(the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Post-Petition
Credit Agreement dated as of October __, 2000 (as amended, amended and restated,
modified, supplemented or renewed, the "Credit Agreement") among Xxxxx Corning,
a Delaware corporation (the "Company"), and certain Subsidiaries of the Company
which are signatory thereto (together with the Company, each a "Borrower" and
collectively "Borrowers"), the several financial institutions from time to time
party thereto (including the Assignor, the "Lenders"), and Bank of America, N.
A., as agent for the Lenders (the "Agent"). Any terms defined in the Credit
Agreement and not defined in this Assignment and Acceptance are used herein as
defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor
has committed to making Loans (the "Committed Loans") to the Borrowers in an
aggregate amount not to exceed $__________ (the "Commitment");
WHEREAS, the Assignor has made Committed Loans in the
aggregate principal amount of $__________ to the Borrowers;
WHEREAS, [the Assignor has acquired a participation in its pro
rata share of the Lenders' liabilities under Letters of Credit in an aggregate
principal amount of $____________ (the "L/C Obligations")] [no Letters of Credit
are outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part
of the] [all] rights and obligations of the Assignor under the Credit Agreement
in respect of its Commitment, together with a corresponding portion of each of
its outstanding Committed Loans and L/C Obligations, in an amount equal to
$__________ (the "Assigned Amount") on the terms and subject to the conditions
set forth herein and the Assignee wishes to accept assignment of such rights and
to assume such obligations from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
-------------------------
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) __% (the "Assignee's Percentage
Share") of (A) the Commitment, the Committed Loans and the L/C Obligations of
the Assignor and (B) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Credit Agreement
and the Loan Documents.
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Lender under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender. It is the
intent of the parties hereto that the Commitment of the Assignor shall, as of
the Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, the Assignor shall not relinquish its rights under
Sections __ and __ of the Credit Agreement to the extent such rights relate to
the time prior to the Effective Date.
(c) After giving effect to the assignment and
assumption set forth herein, on the Effective Date the Assignee's Commitment
will be $__________.
(d) After giving effect to the assignment and
assumption set forth herein, on the Effective Date the Assignor's Commitment
will be $__________.
2. Payments.
--------
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the Assignee's Pro Rata Share of the principal amount of all
Committed Loans.
(b) The Assignee further agrees to pay to the Agent
a processing fee in the amount specified in Section 11.2(a) of the Credit
Agreement.
3. Reallocation of Payments.
------------------------
Any interest, fees and other payments accrued to the Effective
Date with respect to the Commitment, and Committed Loans and L/C Obligations
shall be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Amount
shall be for the account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest, fees and
other amounts which it may receive to which the other party is entitled pursuant
to the preceding sentence and pay to the other party any such amounts which it
may receive promptly upon receipt.
4. Independent Credit Decision.
---------------------------
The Assignee (a) acknowledges that it has received a copy of
the Credit Agreement and the Schedules and Exhibits thereto, together with
copies of the most recent financial statements of the Company and its
Subsidiaries, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter into
this Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Credit Agreement.
5. Effective Date; Notices.
-----------------------
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be __________, 200_ (the
"Effective Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be
executed and delivered by the Assignor and the Assignee;
[(ii) the consent of the Agent [and the Borrower
Representative] required for an effective assignment of the Assigned
Amount by the Assignor to the Assignee shall have been duly obtained
and shall be in full force and effect as of the Effective Date;]
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this Assignment and Acceptance;
[(iv) the Assignee shall have complied with
Section 11.2 of the Credit Agreement (if applicable);]
(v) the processing fee referred to in Section
2(b) hereof and in Section 11.2(a) of the Credit Agreement shall have been
paid to the Agent; and
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Borrower and the Agent for
acknowledgment by the Agent [and the Borrower], a Notice of Assignment in the
form attached hereto as Schedule 1.
6. [Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
-----
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the Lenders pursuant to the
terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Agent under the Credit Agreement.]
7. Withholding Tax.
---------------
The Assignee (a) represents and warrants to the Lender, the
Agent and the Borrowers that under applicable law and treaties no tax will be
required to be withheld by the Lender with respect to any payments to be made to
the Assignee hereunder, (b) agrees to furnish (if it is organized under the laws
of any jurisdiction other than the United States or any State thereof) to the
Agent and the Borrowers prior to the time that the Agent or Borrowers is
required to make any payment of principal, interest or fees hereunder, duplicate
executed originals of either U.S. Internal Revenue Service Form W-8ECI or U.S.
Internal Revenue Service Form W-8BEN (wherein the Assignee claims entitlement to
the benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to provide
new Forms W-8ECI or W-8BEN upon the expiration of any previously delivered form
or comparable statements in accordance with applicable U.S. law and regulations
and amendments thereto, duly executed and completed by the Assignee, and (c)
agrees to comply with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
8. Representations and Warranties.
------------------------------
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or statements of the Borrowers, or the performance or observance by the
Borrowers, of any of its respective obligations under the Credit Agreement or
any other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; [and (iv) it is an
Eligible Assignee.]
9. Further Assurances.
------------------
The Assignor and the Assignee each hereby agree to execute and
deliver such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Borrowers or the Agent, which may be required in
connection with the assignment and assumption contemplated hereby.
10. Miscellaneous.
-------------
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor and
the Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or Federal court sitting in [ ] over any suit, action or proceeding
arising out of or relating to this Assignment and Acceptance and irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such [ ] State or Federal court. Each party to this Assignment and
Acceptance hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR
STATEMENTS (WHETHER ORAL OR WRITTEN).
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By:
Title:
Address:
[ASSIGNEE]
By:
Title:
Address:
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, 200_
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn:
-------------------------------
Re: [Name and Address of Borrower]
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of _________, 200_
(as amended, amended and restated, modified, supplemented or renewed from time
to time the "Credit Agreement") among ______________________ (the "Borrower"),
the Lenders referred to therein and Bank of America, N. A., as agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein as
therein defined.
1. We hereby give you notice of, and request your consent to,
the assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in and to
the Credit Agreement (including the right, title and interest of the Assignor in
and to the Commitments of the Assignor, all outstanding Loans made by the
Assignor and the Assignor's participation in the Letters of Credit pursuant to
the Assignment and Acceptance Agreement attached hereto (the "Assignment and
Acceptance"). We understand and agree that the Assignor's Commitment, as of ,
200 , is $ ___________, the aggregate amount of its outstanding Loans is
$_____________, and its participation in L/C Obligations is $_____________.
2. The Assignee agrees that, upon receiving the consent of the
Agent and, if applicable, the Borrower to such assignment, the Assignee will be
bound by the terms of the Credit Agreement as fully and to the same extent as if
the Assignee were the Lender originally holding such interest in the Credit
Agreement.
3. The following administrative details apply to the
Assignee:
(A) Notice Address:
Assignee name:
----------------------------
Address:
----------------------------------
Attention:
----------------------------------
Telephone: (___)
------------------------
Telecopier: (___)
-----------------------
Telex (Answerback):
---------------------
(B) Payment Instructions:
Account No.:
----------------------------
At:
----------------------------
Reference:
----------------------------
Attention:
----------------------------
4. You are entitled to rely upon the representations,
warranties and covenants of each of the Assignor and Assignee contained in the
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
this Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
------------------------------------------
Title:
------------------------------------------
[NAME OF ASSIGNEE]
By:
------------------------------------------
Title:
------------------------------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
Bank of America, N. A.
as Agent
By:
-----------------------------------------
Title:
-----------------------------------------
SCHEDULE 1.1
COMMITMENTS
Revolving Loan Pro Rata Share
Lender Commitment (3 decimals)
------
Bank of America, N.A. $500,000,000 100%
