EXECUTION COPY
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$25,000,000
CREDIT AGREEMENT
DATED AS OF MAY 1, 1998
AMONG
XXXXXXXX COMMERCIAL CORPORATION
AS BORROWER,
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THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER INSTITUTIONAL LENDERS NAMED HEREIN,
AS INITIAL LENDERS,
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AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT AND ISSUING BANK
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..................................... 1
SECTION 1.01. Certain Defined Terms................................. 1
SECTION 1.02. Computation of Time Periods........................... 24
SECTION 1.03. Accounting Terms...................................... 24
SECTION 1.04 Other Definitional Provisions......................... 25
ARTICLE II
AMOUNTS AND TERMS OF ADVANCES AND LETTERS OF CREDIT.................. 26
SECTION 2.01 The Advances........................................... 26
SECTION 2.02 Making the Advances.................................... 27
SECTION 2.03 Issuance of and Drawings and Reimbursement
Under Letters of Credit.......................... 28
SECTION 2.04 Repayment of Advances.................................. 30
SECTION 2.05 Termination or Reduction of the Commitments............ 31
SECTION 2.06 Prepayments............................................ 31
SECTION 2.07 Interest............................................... 32
SECTION 2.08 Fees................................................... 34
SECTION 2.09 Conversion of Advances................................. 35
SECTION 2.10 Increased Costs, Etc................................... 36
SECTION 2.11 Payments and Computations.............................. 37
SECTION 2.12 Taxes.................................................. 39
SECTION 2.13 Sharing of Payments, Etc............................... 41
SECTION 2.14 Use of Proceeds........................................ 41
SECTION 2.15 Defaulting Lenders..................................... 42
SECTION 2.16 Domicile of Loans...................................... 44
ARTICLE III
CONDITIONS OF LENDING................................................ 45
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.... 45
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.... 52
ARTICLE IV
REPRESENTATIONS AND WARRANTIES....................................... 54
SECTION 4.01. Corporate Existence.................................... 54
SECTION 4.02. Organization and Subsidiaries.......................... 54
SECTION 4.03 Corporate Power, Authorization......................... 55
SECTION 4.04 Governmental Authorizations, Approvals................. 55
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SECTION 4.05 Enforceable Obligations................................ 56
SECTION 4.06 Financial Statements................................... 56
SECTION 4.07 Pro Forma.............................................. 56
SECTION 4.08 Accurate Information................................... 56
SECTION 4.09 No Litigation.......................................... 56
SECTION 4.10 Regulation U........................................... 57
SECTION 4.11 ERISA.................................................. 57
SECTION 4.12 Material Adverse Effect................................ 57
SECTION 4.13 Environmental Matters.................................. 57
SECTION 4.14 Restrictive Agreements................................. 58
SECTION 4.15 Liens and Security Interests........................... 58
SECTION 4.16 Taxes.................................................. 59
SECTION 4.17 Compliance with Securities Laws........................ 59
SECTION 4.18 Solvency............................................... 59
SECTION 4.19 Debt................................................... 60
SECTION 4.20 No Defaults, Compliance With Laws...................... 60
SECTION 4.21 Owned Real Property.................................... 60
SECTION 4.22 Leased Real Property................................... 61
SECTION 4.24 Investments............................................ 61
SECTION 4.25 Intellectual Property.................................. 61
SECTION 4.26 Acquisition Documents.................................. 61
SECTION 4.27 Fees................................................... 62
SECTION 4.28 Government Consents for Conduct of Business............ 62
SECTION 4.29 Assets of Borrower..................................... 63
ARTICLE V
REPORTING REQUIREMENTS............................................... 64
SECTION 5.01 Default Notice......................................... 64
SECTION 5.02 Annual Financials...................................... 64
SECTION 5.03 Quarterly Financials................................... 65
SECTION 5.05 Annual Budgets......................................... 66
SECTION 5.06 ERISA Events and ERISA Reports......................... 66
SECTION 5.07 Plan Terminations...................................... 66
SECTION 5.08 Actuarial Reports...................................... 66
SECTION 5.09 Plan Annual Reports.................................... 66
SECTION 5.10 Annual Plan Summaries.................................. 67
SECTION 5.11 Multiemployer Plan Notices............................. 67
SECTION 5.12 Litigation............................................. 67
SECTION 5.13 Securities Reports..................................... 67
SECTION 5.14 Creditor Reports....................................... 67
SECTION 5.15 Agreement Notices...................................... 67
SECTION 5.16 Revenue Agent Reports.................................. 68
SECTION 5.17 Environmental Conditions............................... 68
SECTION 5.18 Real Property.......................................... 68
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SECTION 5.19 Insurance.............................................. 68
SECTION 5.20 Management Letters..................................... 68
SECTION 5.21 Egerton Consideration Documents........................ 69
SECTION 5.22 Other Information...................................... 69
ARTICLE VI
AFFIRMATIVE AND FINANCIAL COVENANTS.................................. 70
SECTION 6.01 Compliance with Law.................................... 70
SECTION 6.02 Payment of Taxes, Etc.................................. 70
SECTION 6.03 Compliance with Environmental Laws..................... 70
SECTION 6.04 Preparation of Environmental Reports................... 71
SECTION 6.05 Maintenance of Insurance............................... 71
SECTION 6.06 Preservation of Corporate Existence, Etc............... 72
SECTION 6.07 Visitation Rights...................................... 72
SECTION 6.08 Keeping of Books....................................... 72
SECTION 6.09 Maintenance of Properties, Etc......................... 73
SECTION 6.10 Compliance with Terms of Leaseholds.................... 73
SECTION 6.11 Performance of Material Contracts...................... 73
SECTION 6.12 Intentionally omitted.................................. 73
SECTION 6.13 Agreement to Grant Additional Security................. 73
SECTION 6.14 Interest Rate Protection............................... 75
SECTION 6.15 Performance of Acquisition Documents................... 75
SECTION 6.16 Consummation of Acquisition............................ 76
SECTION 6.17 Intentionally omitted.................................. 76
SECTION 6.18. Financial Covenants.................................... 76
ARTICLE VII
NEGATIVE COVENANTS................................................... 78
SECTION 7.01 Liens, Etc.............................................. 78
SECTION 7.02 Debt.................................................... 79
SECTION 7.03 Lease Obligations....................................... 80
SECTION 7.04 Fundamental Changes..................................... 80
SECTION 7.05 Sales, Etc. of Assets................................... 81
SECTION 7.06 Investments in Other Persons............................ 81
SECTION 7.07 Dividends, Etc.......................................... 82
SECTION 7.08 Change in Nature of Business............................ 83
SECTION 7.09 Charter Amendments...................................... 83
SECTION 7.10 Accounting Changes...................................... 83
SECTION 7.11 Prepayments, Etc. of Debt............................... 83
SECTION 7.12 Amendment, Etc. of Acquisition Documents................ 83
SECTION 7.13 Amendment, Etc. of Material Contracts................... 83
SECTION 7.14 Negative Pledge......................................... 84
SECTION 7.15 Partnerships, New Subsidiaries.......................... 84
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SECTION 7.16 Speculative Transactions................................ 84
SECTION 7.17 Intentionally omitted................................... 84
SECTION 7.18 Issuance of Stock....................................... 84
SECTION 7.19 Transactions with Affiliates............................ 85
SECTION 7.20 Intentionally omitted................................... 85
SECTION 7.21 Capital Expenditures.................................... 85
SECTION 7.22 Amendment, Etc. of Egerton Consideration Documents...... 86
ARTICLE VIII
EVENTS OF DEFAULT.................................................... 87
SECTION 8.01 Payment................................................ 87
SECTION 8.02 Representations and Warranties......................... 87
SECTION 8.03 Certain Covenants...................................... 87
SECTION 8.04 Other Defaults; Material Contracts..................... 88
SECTION 8.05 Other Debt............................................. 88
SECTION 8.06 Bankruptcy............................................. 88
SECTION 8.07 Judgment............................................... 89
SECTION 8.08 Material Provision..................................... 89
SECTION 8.09 Collateral Document.................................... 89
SECTION 8.10 Change of Control...................................... 89
SECTION 8.11 ERISA Events........................................... 90
SECTION 8.12 Material Adverse Change................................ 90
SECTION 8.13 Post-Closing Agreement................................. 90
SECTION 8.14 Actions in Respect of the Letters of Credit upon
Default................................................ 91
ARTICLE IX
THE ADMINISTRATIVE AGENT............................................. 92
SECTION 9.01 Authorization and Action............................... 92
SECTION 9.02 Agent's Reliance, Etc.................................. 92
SECTION 9.03 Fleet and Affiliates................................... 93
SECTION 9.04 Lender Credit Decision................................. 93
SECTION 9.05 Indemnification........................................ 93
SECTION 9.06 Events of Default...................................... 95
SECTION 9.07 Successor Administrative Agents........................ 95
SECTION 9.08 Security Trustee....................................... 96
ARTICLE X
MISCELLANEOUS 97
SECTION 10.01 Amendments, Etc....................................... 97
SECTION 10.02 Notices Etc........................................... 97
SECTION 10.03 No Waiver; Remedies................................... 99
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SECTION 10.04 Costs and Expenses.................................... 99
SECTION 10.05 Right of Set-off..................................... 101
SECTION 10.06 Binding Effect....................................... 102
SECTION 10.07 Assignments and Participations....................... 102
SECTION 10.08 Execution in Counterparts............................ 105
SECTION 10.09 No Liability of the Issuing Bank..................... 105
SECTION 10.10 Survival of Agreements and Representations;
Construction......................................... 106
SECTION 10.11 Confidentiality...................................... 106
SECTION 10.12 Further Assurances................................... 106
SECTION 10.13 Severability......................................... 107
SECTION 10.15 GOVERNING LAW........................................ 108
SECTION 10.16 WAIVER OF JURY TRIAL................................. 108
SECTION 10.17 Foreign Exchange Indemnity........................... 108
SECTION 10.18 FINAL AGREEMENT...................................... 109
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EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Revolving Note
Exhibit C Form of Notice of Borrowing
SCHEDULES
Schedule I Commitments and Applicable Lending Offices
Schedule 3.01(a)(x) States in which Borrower and its Subsidiaries are qualified
to do business
Schedule 4.02 Organization and Subsidiaries
Schedule 4.04 Governmental Authorizations, Approvals
Schedule 4.09 Disclosed Litigation
Schedule 4.11 ERISA
Schedule 4.13 Environmental Matters
Schedule 4.14 Restrictive Agreements
Schedule 4.16 Taxes
Schedule 4.19 Debt
Schedule 4.20 Defaults, Compliance With Laws
Schedule 4.21 Owned Real Property
Schedule 4.21(A) Mortgaged Property
Schedule 4.22 Leased Real Property
Schedule 4.23 Material Contracts
Schedule 4.24 Investments
Schedule 4.25 Intellectual Property
Schedule 6.05 Maintenance of Insurance
Schedule 7.01 Liens, Etc.
Schedule 7.06 Investments in Other Persons
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of May 1, 1998, by and among XXXXXXXX
COMMERCIAL CORPORATION, a Delaware corporation (the "Borrower"), the banks,
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financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "Initial Lenders"), FLEET NATIONAL
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BANK, as Initial Issuing Bank (the "Initial Issuing Bank") and FLEET NATIONAL
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BANK, as administrative agent (together with any successor appointed pursuant to
Article IX, the "Administrative Agent") for the Lenders (as hereinafter
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defined).
PRELIMINARY STATEMENTS:
(A) The Borrower wishes to acquire all of the outstanding shares of common
stock of X. X. Xxxxxxx (Holdings) plc, a public limited company incorporated
under the laws of England and Wales;
(B) The Borrower has requested that the Lenders make loans to the Borrower
and issue letters of credit having an aggregate principal amount at any one time
outstanding of up to Twenty Five Million Dollars ($25,000,000), to be used by
the Borrower (a) to finance the Acquisition (hereinafter defined) described
above, (b) to refinance certain existing debt of the Borrower, (c) to repay the
Egerton GRP Debt (as defined below) and (d) to provide working capital for the
Borrower, and the Lenders have agreed to make such loans and issue such letters
of credit all on and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
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As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Acquisition" means the acquisition by the Borrower of all of the shares of
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common stock of X.X. Xxxxxxx (Holdings) plc pursuant to the terms of the
Acquisition Agreement.
"Acquisition Agreement" means the Share Purchase Agreement dated May 1,
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1998 by and among, inter alia, the Borrower, and the vendors thereunder relating
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to the acquisition by the Borrower of all of the shares of common stock of X.X.
Xxxxxxx (Holdings) plc, together with all exhibits, schedules and annexes
thereto and all amendments, modifications and supplements thereof or thereto
entered into on or prior to the date hereof.
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"Acquisition Documents" means the Acquisition Agreement and all agreements,
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instruments and documents executed and delivered in connection therewith, and
all exhibits, annexes and schedules annexed thereto.
"Additional Collateral Documents" has the meaning specified in subsection
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6.13(c).
"Administrative Agent" has the meaning specified in the recital of parties
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to this Agreement.
"Administrative Agent's Account" means the account of the Administrative
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Agent maintained by the Administrative Agent with Fleet at its office at Fleet
National Bank relating to funds received from the Lenders.
"Advance" means a Letter of Credit Advance or a Revolving Advance.
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"Affiliate" means, as to any Person, any other Person that, directly or
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indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 50% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"After-Acquired Mortgaged Property" means any real property or leasehold
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property acquired by the Borrower or any of its Subsidiaries after the Closing
Date pursuant to Section 6.13 and on which property a mortgage is granted by the
Borrower or its Subsidiary.
"Applicable Lending Office" means, with respect to each Lender, such
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Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's LIBOR Lending Office in the case of a LIBOR Rate Advance.
"Applicable Margin" means, at any time and from time to time, a percentage
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per annum (expressed in basis points) determined by reference to the ratio of
Total Consolidated Debt of the Borrower to Consolidated EBITDA of the Borrower
for the four full fiscal quarters preceding such determination, as set forth
below:
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Applicable Margin for Revolving Advances
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Ratio of
Consolidated Applicable Applicable
Total Debt to Margin for Margin for
Consolidated Base Rate LIBOR Rate
EBITDA Advances Advances
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Equal to or greater
than 1.5:1.0 0% 1.00%
Equal to or greater
than 1.0:1.0 but less
than 1.5:1.0 0% 0.75%
Equal to or greater
than 0.5:1.0 but
less than 1.0:1.0 0% 0.625%
Less than 0.5:1.0 0% 0.50%
The Applicable Margin for each Base Rate Advance and each LIBOR Rate Advance
shall be determined by reference to the ratio of Total Consolidated Debt to
Consolidated EBITDA which shall be determined three Business Days after the date
on which the Administrative Agent receives financial statements pursuant to
Section 5.02 or 5.03 and a certificate of the chief financial officer of the
Borrower demonstrating the ratio of Total Consolidated Debt to Consolidated
EBITDA. If the Borrower has not submitted to the Administrative Agent the
information described above as and when required under Section 5.02 or 5.03, as
the case may be, the Applicable Margin shall be as determined by the
Administrative Agent, in its discretion, for so long as such information has not
been received by the Administrative Agent. The Applicable Margin shall next
change (if applicable) as of the first day of the month following the date of
determination described in the two preceding sentences. In the event that the
financial statements received pursuant to Section 5.02 indicate that the
Applicable Margin determined on the basis of financial statements theretofore
received pursuant to Section 5.03 is different from the Applicable Margin that
would have been determined on the basis of the Section 5.02 financial
statements, the Applicable Margin shall be adjusted retroactively for the
relevant period.
"Asset Disposition" shall mean the disposition of any or all of the fixed
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assets of the Borrower or any of its Subsidiaries, whether by sale, lease,
transfer, loss, damage, destruction, condemnation or otherwise; provided,
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however, that for purposes of subsection 2.06(b) hereof, the term "Asset
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Disposition" shall not include (i) any disposition of inventory in the ordinary
course of business, (ii) and the sale or disposition of the capital stock,
properties or assets of Egerton GRP and (iii) the sale of the Personality
Connector Property.
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"Assignment and Acceptance" means an assignment and acceptance entered into
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by a Lender and an Eligible Assignee, and accepted by the Administrative Agent,
in accordance with Section 10.07 and in substantially the form of Exhibit A
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hereto.
"Available Amount" of any Letter of Credit means, at any time, the maximum
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amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing), subject to computation
of the Foreign Currency Equivalent thereof to the extent provided in this
Agreement.
"Bank Hedge Agreement" means any interest rate Hedge Agreement required or
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permitted under Section 6.14 that is entered into by and between the Borrower
and any Lender.
"Base Rate" means a fluctuating interest rate per annum in effect from time
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to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Fleet in Boston,
Massachusetts, from time to time, as Fleet's prime rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
The Base Rate is a reference rate and does not necessarily represent the worst
or best rate being charged to any customer.
"Base Rate Advance" means an Advance that bears interest as provided in
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subsection 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
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Agreement.
"Borrower's Account" means the account of the Borrower maintained by the
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Borrower with Fleet National Bank at its office at Xxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx.
"Borrowing" means a Revolving Borrowing.
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"Business Day" means a day of the year on which banks are not required or
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authorized by law to close in Boston, Massachusetts or New York City, New York
and, if the applicable Business Day relates to any LIBOR Rate Advances, on which
dealings are carried on in the London interbank market.
"California R&D Property" means the real property including the 92,000
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square foot research and development building and any other improvements
thereon, owned in fee simple by the Borrower and located in Temecula,
California.
"Capital Expenditures" means, for any Person for any period, the sum of all
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expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions
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therefor or additions thereto, that have been or should be, in accordance with
GAAP, reflected as additions to property, plant or equipment on a consolidated
balance sheet of such Person; provided that Capital Expenditures shall not
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include capital expenditures to the extent that such expenditures constitute a
reinvestment of Net Proceeds from any Asset Disposition permitted under this
Agreement in similar fixed assets, which reinvestment is made before or within
one hundred eighty (180) days after receipt of such Net Proceeds.
"Capitalized Leases" means all leases that have been or should be, in
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accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned by the
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Borrower or any of its Subsidiaries, free and clear of all Liens other than
Liens created under the Collateral Documents: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States having a maturity of not
greater than 180 days from the date of issuance thereof, (b) insured
certificates of deposit of or time deposits having a maturity of not greater
than 180 days from the date of issuance thereof with any commercial bank that is
a Lender or a member of the Federal Reserve System, issues (or the parent of
which issues) commercial paper rated as described in clause (c), is organized
under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1 billion or (c) commercial paper having a
maturity of not greater than 180 days from the date of issuance thereof in an
aggregate amount of no more than $2,500,000 per issuer outstanding at any time,
issued by any corporation organized under the laws of any State of the United
States and rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x
Investors Service, Inc. or "A-1" (or the then equivalent grade) by Standard &
Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
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Liability Act of 1980, 42 U.S.C. (S) 9601 et seq., as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
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Liability Information System maintained by the U.S. Environmental Protection
Agency.
"Closing Date" means the date on which all of the conditions precedent set
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forth in Section 3.01 to the Initial Extension of Credit shall have been
satisfied or waived.
"Collateral" means all "Collateral" referred to in the Collateral Documents
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and all other property that is or is intended to be subject to any Lien in favor
of the Administrative Agent for the benefit of the Secured Parties.
"Collateral Documents" means the Pledge Agreements, the Security
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Agreements, the Mortgages, the Intellectual Property Agreements, and each other
agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties, including the
Additional Collateral Documents delivered pursuant to Section 6.13.
"Commitment" means a Letter of Credit Commitment or a Revolving Commitment.
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"Commitment Percentage" means, as to any Lender, the percentage of the
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aggregate Commitments constituted by such Lender's Commitments.
"Compliance Certificate" with respect to the Borrower and its
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Subsidiaries, a certificate to the effect that: (a) as of the effective date of
the certificate, no Default or Event of Default under this Agreement exists or
would exist after giving effect to the action intended to be taken by any Loan
Party, as described in such certificate, including, without limitation, that the
covenants set forth in Section 6.18 hereof would not be breached after giving
effect to such action, together with a calculation in reasonable detail, and in
form satisfactory to the Administrative Agent, of such compliance, and (b) the
representations and warranties contained in Article IV hereof are true and with
the same effect as though such representations and warranties were made on the
date of such certificate, unless stated to relate to a specific earlier date in
which case such specified representations and warranties shall be true and
correct as of such earlier date, and, except for changes in the ordinary course
of business not prohibited by this Agreement, none of which, either singly or in
the aggregate, have had a Material Adverse Effect on the Borrower and its
Subsidiaries taken as a whole, which certificate shall be executed and delivered
by the chief financial officer, president or chief executive officer of the
Borrower.
"Confidential Information" means information that the Borrower furnishes to
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the Administrative Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally available
to the public other than as a result of a breach by the Administrative Agent or
any Lender of its obligations hereunder or that is or becomes available to the
Administrative Agent or such Lender from a source other than the Borrower that
is not, to the best of the Administrative Agent's or such Lender's knowledge,
acting in violation of a confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts, in accordance with
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GAAP, of any Person and all of its Subsidiaries, and if not specified, of the
Borrower and all of its Subsidiaries.
"Consolidated Net Income" means for the Borrower and its Subsidiaries on a
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consolidated basis (without duplication), for any period: the aggregate Net
Income (or loss) after provision for or benefit from income and franchise taxes
determined in accordance with GAAP, but excluding: (a) the income (or loss) of
any Person (other than the Borrower and the Subsidiaries) in which the Borrower
or any Subsidiary has an ownership interest unless received by the Borrower or
Wholly-Owned Subsidiary in a cash distribution; and (b) the income (or loss) of
any Person accrued prior to the date it became a Subsidiary of the Borrower or
was merged into or consolidated with the Borrower or that such Person's assets
were acquired by the Borrower.
"Conversion", "Convert" and "Converted" each refer to a conversion of
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Advances of one Type into Advances of the other Type pursuant to Section 2.09 or
2.10.
"Debt" of any Person means, without duplication, (a) all indebtedness of
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such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services, (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all Obligations of such Person created or arising under any conditional
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sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property), (e) all Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations, contingent or otherwise, of such Person under
bankers acceptance, letter of credit or similar facilities, (g) all Obligations
of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any capital stock of or other ownership or profit interest
in such Person or any other Person or any warrants, rights or options to acquire
such capital stock, (h) all Obligations of such Person in respect of Hedge
Agreements, (i) all Debt of others referred to in clauses (a) through (h) above
or clause (ii) below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt, (ii) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (iii) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss, and (j) all Debt referred to in
clauses (a) through (i) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts,
contract rights or inventory) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt.
"Default" means any Event of Default or any event that would constitute an
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Event of Default but for the requirement that notice be given or time elapse or
both.
"Defaulted Advance" means, with respect to any Lender at any time, the
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portion of any Advance required to be made by such Lender to the Borrower
pursuant to Section 2.01 at or prior to such time which has not been made by
such Lender or by the Administrative Agent for the account of such Lender
pursuant to subsection 2.02(d) as of such time. In the event that a portion of
a Defaulted Advance shall be deemed made pursuant to Section 2.15, the remaining
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date as the
Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender at any time, any
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amount required to be paid by such Lender to the Administrative Agent or any
other Lender hereunder or under any other Loan Document at or prior to such time
which has not been so paid as of such time, including, without limitation, any
amount required to be paid by such Lender to (a) the Issuing Bank pursuant to
subsection 2.03(c) to purchase a portion of a Letter of Credit Advance made by
the Issuing Bank (b) the Administrative Agent pursuant to subsection 2.02(d) to
reimburse the Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender, (c) any other Lender
pursuant to Section 2.13 to purchase any participation in Advances owing to such
other Lender and (d) the Administrative Agent or the Issuing Bank pursuant to
Section 9.05 to reimburse the Administrative Agent or the Issuing Bank for such
Lender's ratable share of any amount required to be paid by the Lenders to the
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Administrative Agent or the Issuing Bank as provided therein. In the event that
a portion of a Defaulted Amount shall be deemed paid pursuant to Section 2.15,
the remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan Document
on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such time, (a)
-----------------
owes a Defaulted Advance or a Defaulted Amount or (b) shall take any action or
be the subject of any action or proceeding of a type described in Section 8.06.
"Disclosed Litigation" has the meaning specified in subsection 3.01(j).
--------------------
"Disposal" means the discharge, deposit, injection, dumping, spilling,
--------
leaking or placing of any solid waste or hazardous waste, as those terms are
defined by any federal, state, local or foreign law, into or on any land or
water so that such solid waste or hazardous waste or any constituents thereof
may enter the environment or be emitted into the air or discharged into any
waters, including ground waters.
"Domestic Lending Office" means, with respect to any Lender, the office of
-----------------------
such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
----------
became a Lender, as the case may be, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Domestic Subsidiary" means any Subsidiary organized under the laws of the
-------------------
United States of America or any State thereof.
"EBITDA" means, for any Person for any period (a) the sum, determined on a
------
Consolidated basis, of (i) Consolidated Net Income (or net loss), (ii) interest
expense deducted in the determination of Net Income, (iii) income tax expense,
(iv) depreciation expense and (v) amortization expense including amortization of
fees and expenses related to the Acquisition, in each case determined in
accordance with GAAP for such period.
"Egerton" means X.X. Xxxxxxx (Holdings) plc individually and on a
-------
consolidated basis with its Subsidiaries.
"Egerton Consideration Documents" means the Egerton Guarantee Instruments,
-------------------------------
the Share Purchase Notes and any other documents executed and delivered in
connection therewith.
"Egerton Consideration Notes Guarantee" means the Instrument Constituting
-------------------------------------
Guarantee Unsecured Floating Rate Loan Notes 1998/2003 (Consideration Loan Note)
dated on or about the date of this Agreement, by and between the Borrower, as
issuer, and NatWest, as guarantor.
"Egerton GRP" means Egerton GRP, a wholly-owned subsidiary of Egerton.
-----------
8
"Egerton GRP Debt" means the indebtedness of Egerton GRP owing to Midland
----------------
Bank plc in an amount not exceeding $5,500,000.
"Egerton Guarantee Instruments" means, collectively, the Egerton
-----------------------------
Consideration Notes Guarantee and the Egerton Retention Notes Guarantee.
"Egerton Holdings" means X.X. Xxxxxxx (Holdings) plc individually.
----------------
"Egerton Intercompany Debt" has the meaning specified in Section
-------------------------
3.01(a)(iii)(6).
"Egerton Letters of Credit" means, collectively, a letter of credit
-------------------------
relating to the Egerton Consideration Notes Guarantee and a letter of credit
relating to the Egerton Retention Notes Guarantee, in each case issued or to be
issued for the account of the Borrower and for the benefit of NatWest.
"Egerton Registers" means, collectively, the registers referred to, and
-----------------
maintained by the Borrower pursuant to, the Egerton Guarantee Instruments.
"Egerton Retention Notes Guarantee" means the Instrument Constituting
---------------------------------
Guarantee Unsecured Floating Rate Loan Notes 1999/2003 (Retention Loan Notes)
dated on or about the date of this Agreement, by and between the Borrower, as
issuer, and NatWest, as guarantor.
"Eligible Assignee" means with respect to the Revolving Facility (a) a
-----------------
Lender; (b) an Affiliate of a Lender; and (c) subject to the prior approval of
the Administrative Agent and the Borrower, such approval not to be unreasonably
withheld or delayed, (i) a commercial bank organized under the laws of the
United States, or any State thereof, and having total assets in excess of
$500,000,000; (ii) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $500,000,000; (iii) a commercial bank organized under the
laws of any other country that is a member of the OECD or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency located
in the United States; (iv) the central bank of any country that is a member of
the OECD; and (v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other entity)
that is engaged in making, purchasing or otherwise investing in commercial loans
in the ordinary course of its business and having total assets in excess of
$500,000,000 and, with respect to the Letter of Credit Facility, a Person that
is an Eligible Assignee under subclause (i) or (iii) of clause (c) of this
definition and is approved by the Administrative Agent and the Borrower, such
approval not to be unreasonably withheld or delayed; provided, however, that no
-------- -------
Loan Party or Affiliate of a Loan Party shall qualify as an Eligible Assignee
under this definition, and no consent of the Borrower shall be required during
the continuance of any Default hereunder.
"Environmental Action" means any action, suit, demand, demand letter,
--------------------
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding,
9
consent order or consent agreement relating in any way to any Environmental Law,
any Environmental Permit or Hazardous Material or arising from alleged injury or
threat to public health and safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority or third party for
enforcement, cleanup, Removal, Response, Remedial or other actions or damages or
(b) by any governmental or regulatory authority or third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any international or transnational law, federal,
-----------------
state, local or foreign statute, law, ordinance, rule, regulation, code, order,
writ, judgment, injunction, decree or judicial or agency interpretation, policy
or guidance relating to pollution or protection of the environment or natural
resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, threatened release, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number,
--------------------
license or other authorization required under any Environmental Law.
"Equityholders" means any holder of an Equity Interest.
-------------
"Equity Interest", means, in any Person, any and all shares, interests,
---------------
participations, rights or other equivalents (however designated) of any capital
stock or other ownership of any profit interest, and any and all warrants,
rights, options, obligations or other securities of or in such Person, and
rights to acquire any of the foregoing, including, without limitation,
partnership interests and joint venture (whether general or limited) and any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, such
partnership or joint venture, but excluding debt for borrowed money and
excluding any debt security that is convertible into, or exchangeable for any of
the foregoing equity interests.
"Equity Issuance" means any issuance or sale by the Borrower or any of its
---------------
Subsidiaries of its capital stock or other equity securities or any obligations
convertible into or exchangeable for, or giving any Person a right, option or
warrant to acquire such securities or such convertible or exchangeable
obligations; provided, however, that for purposes of Section 2.06 hereof, the
-------- -------
term "Equity Issuance" shall not include any issuance or sale of (a) common
stock of the Borrower to any director of the Borrower required by applicable law
in connection with such person acting in such capacity with the Borrower; or (b)
common stock of the Borrower to management and employees pursuant to any stock
option plan permitted hereunder or the exercise of options issued pursuant
thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
---------------
is a member of the controlled group of any Loan Party, or under common control
with any Loan Party, within the meaning of Section 414 of the Internal Revenue
Code.
10
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
-----------
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days; (b) the application for a minimum funding waiver with respect to a
Plan; (c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan under ERISA Section 4041(c), pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of the
------------------------
Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Events of Default" has the meaning specified in Article VIII.
-----------------
"Existing Debt" means Debt of the Borrower and its Subsidiaries described
-------------
on Schedule 4.19.
-------------
"Facility" means the Letter of Credit Facility or the Revolving Facility.
--------
"Federal" means any or all of the governments of the United States of
-------
America and the United Kingdom and any other foreign jurisdictions in which any
Subsidiary operates or has assets and any agency, bureau, subdivision, or
authority of any thereof, in each case as may be applicable to the Borrower or
any Subsidiary.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
------------------
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
11
"Fiscal Year" means a fiscal year of the Borrower and its Consolidated
-----------
Subsidiaries ending on December 31 in any calendar year.
"Fixed Charge Coverage Ratio" has the meaning specified in Section 6.18.
---------------------------
"Fleet" means Fleet National Bank in its capacity as a Lender or issuer of
-----
Letters of Credit hereunder.
"Foreign Currency" means, with respect to a Foreign Currency Letter of
----------------
Credit, British pounds sterling.
"Foreign Currency Banking Day" means any Business Day on which dealings in
----------------------------
deposits in the applicable Foreign Currency are conducted by and among banks in
Boston, Massachusetts, New York, New York and London, England.
"Foreign Currency Equivalent" means, as of any date of determination, the
---------------------------
equivalent amounts in U.S. dollars of a Foreign Currency Letter of Credit using
the currency exchange rate for such date for the applicable Foreign Currency in
the New York City wholesale Foreign Currency exchange market in trading among
banks in amounts of $1,000,000 or more, as reported in the Wall Street Journal,
-------------------
or, if not so reported for such date, as otherwise reasonably determined by the
Administrative Agent.
"Foreign Currency Letter of Credit" means the Egerton Letters of Credit,
---------------------------------
and the obligations of the Issuing Bank to make payments thereunder in an amount
of U.S. dollars that will be computed based on the exchange rate for British
pounds sterling.
"Foreign Subsidiary" means any Subsidiary other than one organized under
------------------
the laws of the United States of America or any State thereof.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board that are applicable to the
circumstances as of the date of determination.
"Guarantor(s)" means (a) each Domestic Subsidiary of the Borrower, and (b)
------------
each Person which shall have executed and delivered or become a party to a
Guaranty hereunder.
"Guaranty" has the meaning specified Section 3.01.
--------
"Hazardous Materials" means (a) petroleum or petroleum products, by-
-------------------
products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
12
"Hedge Agreements" means interest rate swap, cap or collar agreements,
----------------
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Hedge Bank" means any Lender in its capacity as a party to a Bank Hedge
----------
Agreement.
"Indemnified Party" has the meaning specified in subsection 10.04(b).
-----------------
"Initial Extension of Credit" means the initial Borrowing and the initial
---------------------------
issuance of a Letter of Credit.
"Initial Issuing Bank" has the meaning specified in the recital of parties
--------------------
to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties to
---------------
this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
-------------
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Expense" means with respect to any Person for any period,
-----------------
interest expense on all Debt of such Person for such period net of interest
income for such period, whether paid or accrued, determined on a Consolidated
basis for such Person and its Subsidiaries and in accordance with GAAP, and
including, without limitation, (a) in the case of the Borrower, interest expense
in respect of Debt resulting from Advances, (b) the interest component of all
obligations under Capitalized Leases, (c) commissions, discounts and other fees
and charges payable in connection with letters of credit (including, without
limitation, Letters of Credit), (d) the net payment, if any, payable in
connection with Hedge Agreements less the net credit, if any, received in
connection with Hedge Agreements and (e) all fees paid by the Borrower pursuant
to subsection 2.08(a).
"Interest Period" means, for each LIBOR Rate Advance comprising part of the
---------------
same Borrowing, the period commencing on the date of such LIBOR Rate Advance or
the date of the Conversion of any Base Rate Advance into such LIBOR Rate
Advance, and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be 30, 60, 90,
or 180 days, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (Eastern Standard Time) on the third Business
Day prior to the first day of such Interest Period, select; provided, however,
-------- -------
that:
(a) The Borrower may not select any Interest Period with respect to
any LIBOR Rate Advance that ends after the Revolving Termination Date;
(b) Interest Periods commencing on the same date for LIBOR Rate
Advances comprising part of the same Borrowing shall be of the same duration;
13
(c) Whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, provided, however,
-------- -------
that, if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(d) Whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding day in
the calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
---------------------
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Investment" by any Person means:
----------
(a) the amount paid or committed to be paid, or the value of property
or services contributed or committed to be contributed, by such Person for or in
connection with the acquisition by such Person of any stock, bonds, notes,
debentures, future contracts, partnership or other ownership or profit
interests, warrants, rights, options, or other securities of any other Person;
and (b) the amount of any advance, loan or extension of credit by such Person,
to any other Person, or guaranty or other similar obligation of such Person with
respect to any Indebtedness of such other Person, and (without duplication) any
amount committed to be advanced, loaned, or extended by such Person to any other
Person, or any amount the payment of which is committed to be assured by a
guaranty or similar obligation by such Person for the benefit of, such other
Person (including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of the
definition of "Debt" in respect of such Person);
provided that: (i) the value of property contributed shall be the lower of fair
--------
market value at the time of contribution, determined in good faith by the
Borrower's Board of Directors, or the book value of such property at the time of
contribution on the books of the Person making such contribution; and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Borrower or any of its Subsidiaries
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment reduced by the fair
market value of all interest, dividends and other distributions (in whatever
form and however designated) made by such Person since the date of its creation
to the applicable holders of such Investments (and their Affiliates), provided
that in no event shall the aggregate amount of interest, dividends and other
distributions made to any holder of an Investment in a Person (or its
Affiliates) operate to reduce the Investment of such Person by more than the
total contributions to such Person (per clauses (a) and (b) above) (and its
Affiliates).
14
"Issuing Bank" means the Initial Issuing Bank and each Eligible Assignee to
------------
which the Letter of Credit Commitment hereunder has been assigned pursuant to
Section 10.07.
"L/C Cash Collateral Account" a cash collateral account, which may be
---------------------------
required by the Administrative Agent as a condition precedent to the issuance of
any Letter of Credit, and agreed to by the Borrower.
"L/C Related Documents" has the meaning specified in subsection 2.04(b)
---------------------
herein.
"Lenders" means the Initial Lenders, the Issuing Banks and each Person that
-------
shall become a Lender hereunder pursuant to Section 10.07.
"Letter of Credit" means any Letter of Credit issued hereunder (as
----------------
specified in subsection 2.03(a)), including, without limitation, the Egerton
Letters of Credit.
"Letter of Credit Advance" means an advance made by the Issuing Bank or any
------------------------
Revolving Lender pursuant to subsection 2.03(c).
"Letter of Credit Agreement" has the meaning specified in subsection
--------------------------
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank, the
---------------------------
amount set forth opposite the Issuing Bank's name on Schedule I hereto under the
----------
caption "Letter of Credit Commitment" (which Commitment is a sublimit of the
Revolving Commitment) or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in the Register
maintained by the Administrative Agent pursuant to subsection 10.07(d) as the
Issuing Bank's "Letter of Credit Commitment," as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
-------------------------
amount of the Issuing Bank's Letter of Credit Commitment at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"LIBOR Lending Office" means, with respect to any Lender, the office of
--------------------
such Lender specified as its "LIBOR Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
----------
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Administrative Agent.
"LIBOR Rate" means, for any Interest Period for all LIBOR Rate Advances
----------
comprising part of the same Borrowing, an interest rate per annum equal to the
rate per annum (rounded upward, if necessary, to the nearest 1/32 of one
percent) as determined on the basis of the offered rates for deposits in U.S.
dollars, for a period of time comparable to such Interest Period which appears
on the Telerate Page 3750 as of 11:00 a.m. (London time) two Business Days
before the first day of such Interest Period in an amount substantially equal to
Fleet's LIBOR Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period; provided,
--------
15
however, that if the rate described above does not appear on the Telerate System
-------
on any applicable interest determination date, the LIBOR Rate shall be the rate
(rounded upward as described above, if necessary) for deposits in U.S. dollars
for a period substantially equal to the Interest Period on the Reuters Page
"LIBO" (or such other page as may replace the LIBO page on that service for the
purpose of displaying such rates), as of 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period.
If both the Telerate and Reuters system are unavailable, then the rate for
that date will be determined on the basis of the offered rates for deposits in
U.S. dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days before the first day of such Interest
Period as selected by the Administrative Agent. The principal London office of
each of the four major London banks will be requested to provide a quotation of
its U.S. dollar deposit offered rate. If at least two such quotations are
provided, the rate for that date will be the arithmetic mean of the quotations.
If fewer than two quotations are provided as requested, the rate for that date
will be determined on the basis of the rates quoted for loans in U.S. dollars to
leading European banks for a period of time comparable to such Interest Period
offered by major banks in New York City at approximately 11:00 a.m. (New York
time) two Business Days before the first day of such Interest Period. In the
event that the Administrative Agent is unable to obtain any such quotation as
provided above, it will be deemed that the LIBOR Rate for such Interest Period
cannot be determined.
In the event that the Board of Governors of the Federal Reserve System
shall impose a LIBOR Rate Reserve Percentage with respect to LIBOR Deposits,
then for any period during which such LIBOR Rate Reserve Percentage shall apply,
the LIBOR Rate for an Interest Period shall be equal to the amount determined
above for such Interest Period divided by a percentage equal to 100% minus the
LIBOR Rate Reserve Percentage for such Interest Period.
"LIBOR Rate Advance" means an Advance that bears interest as provided in
------------------
subsection 2.07(a)(ii).
"LIBOR Rate Reserve Percentage" means, for any Interest Period for all
-----------------------------
LIBOR Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
LIBOR Rate Advances is determined) having a term equal to such Interest Period.
"Lien" means any lien, security interest or other charge or encumbrance of
----
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained
16
security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Documents" means (a) this Agreement, (b) the Notes, (c) each
--------------
Guaranty, (d) the Collateral Documents, (e) each Letter of Credit Agreement, (f)
each Bank Hedge Agreement, (g) each document or agreement delivered pursuant to
Section 6.13, and (h) all other agreements, instruments and documents executed
in connection therewith, in each case as the same may at any time be amended,
supplemented, restated or otherwise modified and in effect.
"Loan Parties" means the Borrower, each of its Subsidiaries, each
------------
Guarantor, and each other Person (other than the Lenders) who shall execute and
deliver a Loan Document.
"Material Adverse Effect" has the meaning specified in subsection 3.01(j).
-----------------------
"Material Contract" means, with respect to any Person, each contract listed
-----------------
on Schedule 4.23, each contract which is a replacement or a substitute for any
-------------
contract listed on such Schedule, and each other contract to which such Person
is a party which is material to the business, condition (financial or
otherwise), operations, performance, properties or prospects of such Person.
"Mortgage" means each mortgage, deed of trust, leasehold mortgage,
--------
leasehold deed of trust, collateral assignment of leases or any other real
estate security documents delivered by the Borrower or any of its Subsidiaries
to the Administrative Agent, in form and substance acceptable to the
Administrative Agent and the Lenders in order (i) to provide that such Loan
Party is the assignor, mortgagor or grantor, as the case may be, (ii) to comply
with and/or provide for specific laws of the jurisdictions in which the real
property or leasehold property to be encumbered is located, and (iii) to assure
that the Administrative Agent for the benefit of the Secured Parties has a
perfected Lien on such real property or leasehold property.
"Mortgage Policies" has the meaning assigned to that term in Section 4.01.
-----------------
"Mortgaged Property" means each real property and leasehold property listed
------------------
on Schedule 4.21(A) hereto that is subject to a Mortgage and shall also include
After-Acquired Mortgaged Property.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
----------------------
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
17
"NatWest" means National Westminster Bank plc, a United Kingdom public
-------
limited company.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
-----------------
other disposition of any asset, or the sale or issuance of any Debt, or any
Equity Issuance, the aggregate amount of cash received from time to time
(whether as initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) reasonable
and customary brokerage commissions, underwriting fees and discounts, legal
fees, finder's fees and other similar out-of-pocket costs, (b) the amount of
taxes payable in connection with or as a result of such transaction, and (c)
with respect to any asset, the amount of any Debt secured by a Lien on such
asset that, by the terms of such transaction, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that the
amounts so deducted are, at the time of receipt of such cash, actually paid to a
Person that is not an Affiliate of such Person or any Loan Party or any
Affiliate of any Loan Party and are properly attributable to such transaction or
to the asset that is the subject thereof. "Net Cash Proceeds" shall not include
proceeds of insurance with respect to an Asset Disposition consisting of an
actual or constructive loss of Property, an agreed or compromised loss of
Property or the taking of any Property under the power of eminent domain and
condemnation awards and awards in lieu of condemnation for the taking of
Property under the power of eminent domain.
"Net Income" means, with respect to any Person, the net income (loss) of
----------
such Person, after provision for or benefit from income and franchise taxes
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however, (a) any gain (but not loss),
together with any related provision for taxes on such gain (but not loss),
realized in connection with (i) any Asset Disposition (including, without
limitation, dispositions pursuant to sale and leaseback transactions), or (ii)
the disposition of any securities or the extinguishment of any Debt of such
Person or any of its Subsidiaries, and (iii) any extraordinary gain (but not
loss), together with any related provision for taxes on such extraordinary gain
(but not loss).
"Note" means a Revolving Note.
----
"Notice of Borrowing" has the meaning specified in subsection 2.02(a).
-------------------
"Notice of Issuance" has the meaning specified in subsection 2.03(a).
------------------
"Notice of Renewal" has the meaning specified in subsection 2.01(b).
-----------------
"NPL" means the National Priorities List under CERCLA.
---
"Obligation" means, with respect to any Person, any payment, performance or
----------
other obligation of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed,
18
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 8.06. Without limiting the generality of the foregoing, the Obligations
of the Loan Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts payable by any
Loan Party under any Loan Document and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender, in its
sole discretion, may elect to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and Development.
----
"Open Year" has the meaning specified in Section 4.16.
---------
"Orpington Property" means the real property including No. 1 Factory, the
------------------
building and improvements located thereon, owned by Egerton Holdings or one of
its Subsidiaries and located in Orpington, England.
"Orpington Sale/Leaseback" has the meaning specified in Section 7.05.
------------------------
"Other Taxes" has the meaning specified in subsection 2.12(b).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
----
"Permitted Liens" means such of the following as to which no enforcement,
---------------
collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges or levies not yet due
and payable; (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations that are not overdue for a
period of more than 30 days; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations; and (d) Permitted Real Property Encumbrances.
"Permitted Real Property Encumbrances" means, with respect to any
------------------------------------
particular real property or leasehold property, (i) those liens, encumbrances
and other matters affecting title to any such property listed in the Mortgage
Policies, if any, in respect thereof and as of the date of delivery of such
Mortgage Policies to Administrative Agent in accordance with the terms hereof,
reasonably acceptable to the Administrative Agent and the Lenders, and (ii)
such easements, encroachments, covenants, rights-of-way, minor defects,
irregularities or encumbrances on title which do not arise out of the incurrence
of any Debt and which do not impair the use of such property for the purpose for
which it is held by the mortgagor thereof, or the Lien granted to the
Administrative Agent for the benefit of the Secured Parties, and (iii) municipal
and zoning ordinances; provided that no violation exists thereunder that could
--------
impair the use of the existing improvements and the present use made by the
mortgagor of such property.
19
"Person" means an individual, partnership, corporation (including a
------
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Personality Connector Property" means the intellectual property known as
------------------------------
the personality connector that is owned by Egerton Holdings or one of its
Subsidiaries.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Post-Closing Agreement" has the meaning specified in subsection 3.01(t).
----------------------
"Pre-Commitment Information" has the meaning specified in subsection
--------------------------
3.01(b).
"Preferred Stock" means, with respect to any corporation, capital stock
---------------
issued by such corporation that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon liquidation.
"Pro Forma Financials" means the pro forma financial statements relating to
--------------------
the Borrower and its Subsidiaries delivered to the Lenders on the Closing Date
after giving effect to the Acquisition and the Initial Extension of Credit.
"Property" means any interest or right in any kind of property or asset,
--------
whether real, personal or mixed, whether owned or leased and whether tangible or
intangible and whether now held or hereafter acquired.
"Pro Rata Share" of any amount means, with respect to any Revolving Lender
--------------
at any time, the product of such amount times a fraction the numerator of which
is the amount of such Lender's Revolving Commitment at such time and the
denominator of which is the Revolving Facility at such time.
"Register" has the meaning specified in subsection 10.07(d).
--------
"Regulation G" means Regulation G of the Board of Governors of the Federal
------------
Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the Federal
------------
Reserve System, as in effect from time to time.
"Regulatory Agency" means any federal, state, local or other U.S. or
-----------------
foreign governmental authority, bureau or agency.
"Release" means any release, spill, emission, leaking, pumping, pouring,
-------
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles
20
containing any Hazardous Materials) or into or from any property, including,
without limitation, the movement of any Hazardous Materials through the air,
soil, surface waters or ground water.
"Remedial" shall have the meaning as set forth in CERCLA at 42 U.S.C. (S)
--------
9601(24) and/or any other applicable Environmental Laws.
"Removal" shall have the meaning as set forth in CERCLA at 42 U.S.C. (S)
-------
9601(23) and/or any other applicable Environmental Laws.
"Required Lenders" means at any time Lenders owed or holding greater than
----------------
sixty-six and 2/3 percent (66 2/3%) of the sum of (i) the aggregate principal
amount of the Advances outstanding at such time, and (ii) the aggregate
Available Amount of all Letters of Credit or, if no such principal amount is
outstanding at such time, Lenders holding greater than sixty-six and 2/3 percent
(66 2/3%) of the Revolving Commitments; provided, however, that if any Lender
-------- -------
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (a) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, and (b) the Revolving Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal amount of
Letter of Credit Advances owing to the Issuing Bank and the Available Amount of
each Letter of Credit shall be considered to be owed to the Revolving Lenders
ratably in accordance with their respective Revolving Credit Commitments.
"Response" shall have the meaning as set forth in CERCLA at 42 U.S.C. (S)
--------
9601(25) and/or any other applicable Environmental Laws.
"Responsible Officer" means, in the case of the Borrower, any officer and,
-------------------
in the case of any other Loan Party, the chief financial officer of such Loan
Party.
"Revolving Advance" has the meaning specified in subsection 2.01(a).
-----------------
"Revolving Borrowing" means a borrowing consisting of simultaneous
-------------------
Revolving Advances of the same Type made by the Revolving Lenders.
"Revolving Commitment" means, with respect to any Revolving Lender at any
--------------------
time, the amount set forth opposite such Lender's name on Schedule I hereto
----------
under the caption "Revolving Commitment" or, if such Lender has entered into one
or more Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to subsection 10.07(d) as such
Lender's "Revolving Commitment," as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Revolving Facility" means, at any time, the aggregate amount of the
------------------
Revolving Lenders' Revolving Commitments at such time.
"Revolving Lender" means any Lender that has a Revolving Commitment.
----------------
21
"Revolving Note" means a promissory note of the Borrower payable to the
--------------
order of any Revolving Lender, in substantially the form of Exhibit B hereto,
---------
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Revolving Advances made by such Lender.
"Revolving Termination Date" means the earlier of the fifth anniversary of
--------------------------
the Closing Date and the Termination Date.
"Secured Parties" means the Administrative Agent, the Lenders, and the
---------------
Hedge Banks and the other Persons the Obligations owing to which are or are
purported to be secured by the Collateral under the terms of the Collateral
Documents.
"Security Agreement" has the meaning specified in Section 3.01(a).
------------------
"Share Purchase Note Certificates" means, collectively, the certificates
--------------------------------
issued to the holders of the Share Purchase Notes pursuant to the Egerton
Guarantee Instruments.
"Share Purchase Notes" means, collectively, the retention loan notes and
--------------------
consideration loan notes issued in connection with the Acquisition Agreement and
under the Egerton Guarantee Instruments, which notes are evidenced by the Share
Purchase Note Certificates.
"Single Employer Plan" means a single employer plan, as defined in Section
--------------------
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or
any ERISA Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a particular
------- --------
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in business or
a transaction, for which such Person's property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Subsidiary" of any Person means any corporation, partnership, joint
----------
venture, limited liability company, trust or estate of which (or in which) more
than 50% of
(a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time
22
capital stock of any other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits or distributions or general
or limited partnership interests of such partnership, joint venture or limited
liability company or
(c) the beneficial interest in such trust or estate,
is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries. Unless otherwise specified, the term Subsidiary as
used herein shall mean a Subsidiary of the Borrower. Unless otherwise expressly
directed, each reference to Subsidiaries in this Agreement shall include
Egerton, and absence of an express reference to Egerton shall not be deemed to
imply an intentional omission.
"Surviving Debt" has the meaning specified in subsection 3.01(n).
--------------
"Taxes" has the meaning specified in subsection 2.12(a).
-----
"Termination Date" means the date of termination in whole of the
----------------
Commitments pursuant to Section 2.05 or Article 8.
"Total Consolidated Debt" means, as of any date, the total amount of Debt
-----------------------
of the Borrower and its Subsidiaries, consolidated in accordance with GAAP.
"Type" refers to the distinction between Advances bearing interest at the
----
Base Rate and Advances bearing interest at the LIBOR Rate.
"Unused Revolving Commitment" means, with respect to any Revolving Lender,
---------------------------
at any time, (a) such Lender's Revolving Commitment at such time minus (b) the
-----
aggregate principal amount of (i) all Revolving Advances made by such Lender (in
its capacity as a Lender) and outstanding at such time, plus (ii) such Lender's
----
Pro Rata Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (B) the aggregate principal amount of all Letter of
Credit Advances made by the Issuing Bank pursuant to subsection 2.03(c) and
outstanding at such time; provided, that determination of the Available Amount
--------
and the principal amounts of all Letter of Credit Advances hereunder, and for
all other purposes of this Agreement, if there are then any outstanding Foreign
Currency Letters of Credit, shall be based on the Foreign Currency Equivalent
thereof as of the Business Day immediately preceding the day on which any Notice
of Borrowing is delivered hereunder.
"Voting Stock" means capital stock issued by a corporation, or equivalent
------------
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
23
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA,
------------
that is maintained for employees of any Loan Party or in respect of which any
Loan Party could have liability.
"Wholly-Owned Subsidiary" of any Person means a Subsidiary of such Person
-----------------------
all of the outstanding Equity Interests of which shall at the time be owned by
such Person or by one or more Wholly-Owned Subsidiaries of that Person or a
combination thereof.
"Withdrawal Liabilities" has the meaning specified in Part I of Subtitle E
----------------------
of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods.
---------------------------
In this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding."
SECTION 1.03. Accounting Terms.
----------------
For purposes of this Agreement, all accounting terms not otherwise defined
herein shall have the meanings assigned to such terms in conformity with GAAP.
Financial statements and other information furnished to Lender pursuant to
Section 5.02 shall be prepared in accordance with GAAP (as in effect at the time
of such preparation) on a consistent basis. In the event any "Accounting
Changes" (as defined below) shall occur and such changes affect financial
covenants, standards or terms in this Agreement, then the Borrower and the
Lenders agree to enter into negotiations in order to amend such provisions of
this Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the financial condition of the
Borrower shall be the same after such Accounting Changes as if such Accounting
Changes had not been made, and until such time as such an amendment shall have
been executed and delivered by the Borrower and the Lenders, (a) all financial
covenants, standards and terms in this Agreement shall be calculated and/or
construed as if such Accounting Changes had not been made, and (b) the Borrower
shall prepare footnotes to each Compliance Certificate and the financial
statements required to be delivered hereunder that show the differences between
the financial statements delivered (which reflect such Accounting Changes) and
the basis for calculating financial covenant compliance (without reflecting such
Accounting Changes). "Accounting Changes" means: (a) changes in accounting
principles required by GAAP and implemented by Borrower; (b) changes in
accounting principles recommended by Borrower's certified public accountants;
and (c) changes in carrying value of the Borrower's or any of its Subsidiaries'
assets, liabilities or equity accounts resulting from adjustments that, in each
case, were applicable to, but not included in, the Pro Forma Financials. All
such adjustments resulting from expenditures made subsequent to the Closing Date
(including, but not limited to, capitalization of costs and expenses or payment
of pre-Closing Date liabilities) shall be treated as expenses in the period the
expenditures are made and deducted as part of the calculation of EBITDA in such
period.
24
SECTION 1.04 Other Definitional Provisions.
-----------------------------
References to "Sections", "subsections", "Exhibits" and "Schedules" shall
be to Sections, subsections, Exhibits and Schedules, respectively, of this
Agreement unless otherwise specifically provided. Any of the terms defined in
Section 1.01 may, unless the context otherwise requires, be used in the singular
or the plural depending on the reference. In this Agreement, words importing
any gender include the other genders; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to agreements and other contractual instruments shall be deemed to
include subsequent amendments, assignments, and other modifications thereto, but
only to the extent such amendments, assignments and other modifications are not
prohibited by the terms of this Agreement or any other Loan Document; references
to Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such Persons; and all references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
25
ARTICLE II
AMOUNTS AND TERMS OF ADVANCES
AND LETTERS OF CREDIT
SECTION 2.01 The Advances.
------------
(a) The Revolving Advances. Each Revolving Lender severally agrees,
----------------------
on the terms and conditions hereinafter set forth, to make advances (each a
"Revolving Advance") to the Borrower from time to time on any Business Day
------------------
during the period from the date hereof until the Revolving Termination Date in
an amount for each such Advance not to exceed such Lender's Unused Revolving
Commitment at such time. Each Revolving Borrowing shall be in an aggregate
amount of $500,000 or an integral multiple of $100,000 in excess thereof (other
than a Borrowing the proceeds of which shall be used solely to repay or prepay
in full outstanding Letter of Credit Advances) and shall consist of Revolving
Advances made simultaneously by the Revolving Lenders ratably according to their
Revolving Commitments. Within the limits of each Revolving Lender's Unused
Revolving Commitment in effect from time to time, the Borrower may borrow, repay
and reborrow.
(b) Letters of Credit. The Issuing Bank agrees, on the terms and
-----------------
conditions hereinafter set forth, to issue standby letters of credit for the
account of the Borrower from time to time on any Business Day during the period
from the Closing Date until sixty (60) days before the Revolving Termination
Date (i) in an aggregate Available Amount for all Letters of Credit not to
exceed at any time the Issuing Bank's Letter of Credit Commitment at such time
and (ii) in an Available Amount for each such Letter of Credit not to exceed an
amount equal to the Unused Revolving Credit Commitments of the Revolving Lenders
at such time. No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal) later than (i) the
earlier of sixty (60) days before the Revolving Termination Date, and (ii) 365
days after the date of issuance thereof. The foregoing notwithstanding, any
Letter of Credit may, by its terms, be renewable annually upon notice (a "Notice
------
of Renewal") given to the Issuing Bank and the Administrative Agent on or prior
----------
to any date for notice of renewal set forth in such Letter of Credit (but in
any event at least five (5) Business Days prior to the date of the proposed
renewal of such Letter of Credit) and upon fulfillment of the applicable
conditions set forth in Article III unless such Issuing Bank shall have notified
the Borrower (with a copy to the Administrative Agent) on or prior to the date
for notice of termination set forth in such Letter of Credit (but in any event
at least thirty (30) Business Days prior to the date of automatic renewal) of
its election notto renew such Letter of Credit (a "Notice of Termination");
---------------------
provided that the terms of each Letter of Credit that is automatically renewable
--------
annually shall not permit the expiration date (after giving effect to any
renewal) of such Letter of Credit in any event to be extended to a date later
than sixty (60) days before the Revolving Termination Date. If either a Notice
of Renewal is not given by the Borrower or a Notice of Termination is given by
the Issuing Bank pursuant to the immediately preceding sentence, such Letter of
Credit shall expire on the date on which it otherwise would have been
automatically renewed; provided, however, that even in the absence of receipt of
------- --------
a Notice of
26
Renewal, the Issuing Bank may, in its discretion unless instructed to the
contrary by the Administrative Agent or the Borrower, deem that a Notice of
Renewal had been timely delivered and, in such case, a Notice of Renewal shall
be deemed to have been so delivered for all purposes under this Agreement.
Within the limits of the Letter of Credit Facility, and subject to the limits
referred to above, the Borrower may request the issuance of Letters of Credit
under this subsection 2.01(b), repay any Letter of Credit Advances resulting
from drawings under Letters of Credit pursuant to Section 2.03 and request the
issuance of additional Letters of Credit under this subsection 2.01(b).
SECTION 2.02 Making the Advances.
-------------------
(a) Notice of Borrowing. Each Borrowing shall be made on notice,
-------------------
given not later than 11:00 A.M. (Eastern Standard Time) on the third Business
Day prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of LIBOR Rate Advances, or the Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each
appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") may be by telephone, confirmed
-------------------
immediately in writing, or telex or telecopier in substantially the form of
Exhibit C hereto, specifying therein the requested (i) date of such Borrowing,
---------
(ii) aggregate amount of such Borrowing and (iii) in the case of a Borrowing
consisting of LIBOR Rate Advances, initial Interest Period for each such
Advance. Each Lender shall, before 11:00 A.M. (Eastern Standard Time) on the
date of such Borrowing, make available to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account.
Notwithstanding the foregoing, the Initial Extension of Credit shall consist of
a Base Rate Advance.
(b) Certain Limitations. Anything in subsection (a) above to the
-------------------
contrary notwithstanding, (i) the Borrower may not select LIBOR Rate Advances if
the obligation of the appropriate Lenders to make LIBOR Rate Advances shall then
be suspended pursuant to Section 2.09 or Section 2.10, and (ii) the Revolving
Advances may not be outstanding as part of more than five (5) separate
Borrowings.
(c) Indemnification. Each Notice of Borrowing shall be irrevocable
----------------
and binding on the Borrower. In the case of any Borrowing that is to be
comprised of LIBOR Rate Advances, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill, on or before the date specified for such Borrowing, the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits as reasonably determined by such
Lender), cost or expense incurred by reason of the liquidation or redeployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing.
27
(d) Certain Defaults. Unless the Administrative Agent shall have
----------------
received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's ratable
portion of such Borrowing, the Administrative Agent may assume that such Lender
has made such portion available in accordance with subsection 2.02(a) and the
Administrative Agent may make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at in the case
of (i) the Borrower, the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing and (ii) such Lender, the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's Advance
as part of such Borrowing for all purposes.
(e) Other Lenders. The failure of any Lender to make the Advance to
-------------
be made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of
-----------------------------------------------------------
Credit.
------
(a) Request for Issuance. Each Letter of Credit shall be issued upon
--------------------
notice, given not later than 11:00 A.M. (Eastern Standard Time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Revolving Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit (a "Notice of
---------
Issuance") shall be by telephone, confirmed immediately in writing, or telex or
--------
telecopier, specifying therein the requested (i) date of such issuance (which
shall be a Business Day), (ii) Available Amount of such Letter of Credit, (iii)
expiration date of such Letter of Credit, (iv) name and address of the
beneficiary of such Letter of Credit and (v) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
the Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If the requested
--------------------------
form of such Letter of Credit is acceptable to the Issuing Bank, in its sole
discretion, the Issuing Bank will, upon fulfillment of the applicable conditions
set forth in Article III, make such Letter of Credit available to the Borrower
at its office referred to in Section 10.02 or as otherwise agreed with the
Borrower in connection with such issuance. In the event and to the extent that
the provisions of any such Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish to the
------------------------
Administrative Agent, the Borrower and each Revolving Lender on the first
Business Day of each calendar quarter a written report setting forth the average
daily aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit.
28
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a
-------------------------
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance which
shall be a Base Rate Advance, in the amount of such draft. The Borrower, the
Administrative Agent and each Revolving Lender hereby acknowledges and agrees
that Letter of Credit Advances may be made, or deemed made, by the Issuing Bank
in respect of any Letter of Credit and to participate in all Letter of Credit
Advances made hereunder as provided herein. Upon written demand by the Issuing
Bank, with a copy of such demand to the Administrative Agent, each Revolving
Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell and
assign to each such Revolving Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available (for the account of its Applicable Lending Office) to the Adminis
trative Agent (for the account of the Issuing Bank), by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to the Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Revolving Lender agrees to purchase its
Pro Rata Share of an outstanding Letter of Credit Advance on (i) the Business
Day on which demand therefor is made by the Issuing Bank; provided that notice
--------
of such demand is given not later than 11:00 A.M. (Eastern Standard Time) on
such Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by the
Issuing Bank to any other Revolving Lender of a portion of a Letter of Credit
Advance, the Issuing Bank represents and warrants to such other Lender that the
Issuing Bank is the legal and beneficial owner of such interest being assigned
by it, free and clear of any liens, but makes no other representation or
warranty and assumes no responsibility with respect to such Letter of Credit
Advance, the Loan Documents or any Loan Party. If and to the extent that any
Revolving Lender shall not have so made the amount of such Letter of Credit
Advance available to the Administrative Agent, such Revolving Lender agrees to
pay to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by the Issuing Bank until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the account of the
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any
-----------------------------------------
Lender to make any Letter of Credit Advance to be made by it on the date
specified in subsection 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
(e) Issuance of Letters of Credit Advances in Connection with the
-------------------------------------------------------------
Acquisition Agreement. Notwithstanding the foregoing, in no event shall the
---------------------
Issuing Bank be obligated to
29
issue any Letter of Credit in connection with the Acquisition Agreement or the
Egerton Consideration Documents other than the Egerton Letters of Credit.
SECTION 2.04 Repayment of Advances.
---------------------
(a) Revolving Advances. The Borrower shall repay to the
------------------
Administrative Agent for the ratable account of the Revolving Lenders on the
Revolving Termination Date the aggregate outstanding principal amount of the
Revolving Advances then outstanding.
(b) Letter of Credit Advances. (i) The Borrower shall repay to the
-------------------------
Administrative Agent for the account of the Issuing Bank and each other
Revolving Lender that has made a Letter of Credit Advance on the earlier of
demand and the Revolving Termination Date the outstanding principal amount of
each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any Letter
of Credit Agreement and any other agreement or instrument relating to any Letter
of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating to any of the foregoing (all of the foregoing being,
collectively, the "L/C Related Docu ments");
----------------------
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of any
L/C Related Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank, or any other Person, whether in
connection with the transactions contemplated by the L/C Related Documents or
any unrelated transaction;
(D) any statement or any other document presented under a 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; or
(E) any exchange, release or non-perfection of any Collateral or other
collateral, or any release or amendment or waiver of or consent to departure
from any Guaranty or any other guarantee, for all or any of the Obligations of
the Borrower in respect of the L/C Related Documents.
30
SECTION 2.05 Termination or Reduction of the Commitments.
-------------------------------------------
(a) Optional. The Borrower may, upon at least three Business Days'
--------
notice to the Administrative Agent, terminate in whole or reduce in part the
unused portions of the Unused Revolving Commitments; provided, however, that
-------- -------
each partial reduction of such Facility (i) shall be in an aggregate amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof, and (ii)
shall be made ratably among the appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) Mandatory. (i) The Letter of Credit Facility shall be
---------
permanently reduced from time to time on the date of each reduction in the
Revolving Facility by the amount, if any, by which the amount of the Letter of
Credit Facility exceeds the Revolving Facility after giving effect to such
reduction of the Revolving Facility.
(ii) In the event the Closing Date shall not have occurred by May 15,
1998, then all of the Commitments shall be automatically terminated and this
Agreement shall be of no further force or effect.
SECTION 2.06 Prepayments.
-----------
(a) Optional. The Borrower may, upon at least one (1) Business Day's
--------
notice in the case of Base Rate Advances and three (3) Business Days' notice in
the case of LIBOR Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided, however, that (i) each partial prepayment shall be in
-------- -------
an aggregate principal amount of $500,000 or an integral multiple of $100,000 in
excess thereof and (ii) no such prepayment of a LIBOR Rate Advance shall be made
other than on the last day of an Interest Period therefor. Each prepayment made
pursuant to this subsection 2.06(a) shall be applied to repay the Facilities in
the following manner: first, to prepay Revolving Advances then outstanding until
-----
such Revolving Advances are paid in full; and second, to prepay Letter of Credit
------
Advances then outstanding until such Advances are paid in full.
(b) Mandatory. (i) Upon receipt by any Loan Party or any of its
---------
Subsidiaries of Net Cash Proceeds from any Asset Disposition, the Borrower shall
prepay the then outstanding Advances in an amount equal to one-hundred percent
(100%) of such Net Cash Proceeds payable concurrently with consummation of such
Asset Disposition; provided that no such prepayment need be made (1) unless the
--------
Net Proceeds from any single Asset Disposition or series of related Asset
Dispositions exceed $100,000 (in which case a prepayment shall be made in the
amount of the entire Asset Disposition) or until the cumulative Net Proceeds
from all Asset Dispositions by the Borrower in any particular fiscal year exceed
$100,000 (in which case a prepayment shall be made in the amount of the Net
Proceeds from the specific Asset Disposition (or portion thereof) causing the
limit to be exceeded), except that the terms of this Section shall not be
applicable with respect to Asset Dispositions by the Borrower or any Subsidiary
if the Net
31
Proceeds therefrom are reinvested in fixed assets (for use in its
business or, with respect to the Borrower, the business of the Subsidiaries)
within 180 days of such Asset Disposition, provided that any such Net Proceeds
--------
not so reinvested shall be used to prepay the Advances on the 181st day;
provided, however, that with respect to the Net Proceeds from the Orpington
-------- -------
Sale/Leaseback, the Borrower shall have twenty-four (24) months from the closing
of the Orpington Sale/Leaseback to reinvest such Net Proceeds in fixed assets
(for use in its business), provided, that, if such Net Proceeds from the
--------
Orpington Sale/Leaseback are not so reinvested within such twenty-four (24)
month period, any such Net Proceeds not so reinvested shall be used to prepay
the Advances on the Business Day immediately succeeding the second anniversary
of the closing of the Orpington Sale/Leaseback.
(ii) Upon receipt by the Borrower or any of its Subsidiaries of Net
Cash Proceeds from any Equity Issuance, the Borrower shall prepay the then
outstanding Advances in an amount equal to one hundred percent (100%) of such
Net Cash Proceeds payable concurrently with consummation of such issuance.
(iii) Upon receipt by the Borrower or any of its Subsidiaries of Net
Cash Proceeds from the sale or issuance by the Borrower or any of its
Subsidiaries of any Debt (other than Debt permitted to be incurred under Section
7.02), the Borrower shall prepay the then outstanding Advances in an amount
equal to one hundred percent (100%) of such Net Cash Proceeds payable
concurrently with consummation of such sale or issuance.
(iv) Each prepayment made pursuant to clause (i), (ii), or (iii)
shall be applied to prepay the Facilities in the following manner: first, to
-----
prepay Revolving Advances then outstanding until such Revolving Advances are
paid in full and second, to prepay Letter of Credit Advances then outstanding
------
until such Advances are paid in full.
(v) The Borrower shall, within fifteen (15) days following the end of
each month in each Fiscal Year, pay to the Administrative Agent for deposit in
the L/C Cash Collateral Account an amount sufficient to cause the aggregate
amount on deposit in such Account to equal the amount by which the aggregate
Available Amount of all Letters of Credit then outstanding exceeds the Letter of
Credit Facility on such Business Day.
(vi) The foregoing notwithstanding, the provisions of this subsection
2.06(b) shall not be construed to permit any Equity Issuance, Debt issuance or
Asset Disposition otherwise prohibited under the terms of this Agreement.
SECTION 2.07 Interest.
--------
(a) Scheduled Interest. The Borrower shall pay to the Administrative
------------------
Agent, for the benefit of the Lenders, interest on the unpaid principal amount
of each Advance owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
32
(i) Base Rate Advances. During such periods as such Advance is a
------------------
Base Rate Advance, a rate per annum equal at all times to the sum of (1) the
Base Rate in effect from time to time plus (2) the Applicable Margin for such
----
Advance in effect from time to time, payable in arrears quarterly on the last
day of each fiscal quarter during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) LIBOR Rate Advances. During such periods as such Advance is a
-------------------
LIBOR Rate Advance, a rate per annum equal at all times during each Interest
Period for such Advance to the sum of (1) the LIBOR Rate for such Interest
Period for such Advance plus (2) the Applicable Margin for such Advance in
----
effect on the first day of such Interest Period, payable in arrears on the last
day of such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date such
LIBOR Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
----------------
of a Default, the Borrower shall pay interest on (i) the unpaid principal amount
of each Advance owing to each Lender, payable in arrears on the dates referred
to in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above, and, in all other cases, on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
-----------------------
Borrowing pursuant to Section 2.02, the Administrative Agent shall give notice
to the Borrower and each appropriate Lender of the applicable interest rate
determined by the Administrative Agent.
(d) Limitation on Interest. All agreements between and among the
----------------------
Borrower, any Guarantors, any other Loan Party and the Lenders and/or the
Administrative Agent are hereby expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of maturity of the
Indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to
be paid to any Lender for the use or the forbearance of the Indebtedness
incurred hereunder exceed the maximum permissible under applicable law. As used
herein the term "applicable law" shall mean the law in effect as of the date
hereof; provided, however, that in the event there is a change in the law which
-------- -------
results in a higher permissible rate of interest, then this Agreement and the
Notes issued hereunder shall be governed by such new law as of its effective
date. In this regard it is expressly agreed that it is the intent of the
Borrower, the Lenders and the Administrative Agent in execution, delivery and
acceptance of this Agreement to contract in strict compliance with the laws of
the State of New York from time to time in effect. If under any circumstances
whatsoever, fulfillment of any provision hereof or of any of the Loan
33
Documents at the time performance of such provision shall be due shall involve
transcending the limits of such validity prescribed by applicable law, then the
obligation to be fulfilled shall automatically be reduced to the limits of such
validity, and if under or from any circumstance whatsoever the Administrative
Agent or any Lender should ever receive as interest any amount which would
exceed the highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the principal balance evidenced by the
Notes issued hereunder and not to the payment of interest. This provision shall
control every other provision of all agreements between and among the Borrower,
any Guarantors, any other Loan Party, the Administrative Agent and the Lenders.
SECTION 2.08 Fees.
----
(a) Commitment Fee. The Borrower shall pay to the Administrative
--------------
Agent, for the account of the Lenders, a commitment fee, from the Closing Date
in the case of each Lender who shall be a party hereto on the Closing Date, and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender, until the Revolving
Termination Date, payable in arrears quarterly on the last Business Day of each
March, June, September, and December, commencing June 30, 1998, and on the
Revolving Termination Date, at a rate per annum, equal to one quarter of one
percent (1/4%) of the aggregate average daily Unused Revolving Commitments of
the Lenders; provided, however, that the Foreign Currency Equivalent of the
-------- -------
outstanding Foreign Currency Letter of Credit shall be determined as of the
Business Day immediately preceding the date of calculation.
(b) Administrative Agent's Fees. The Borrower shall pay to the
---------------------------
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent, including, without
limitation, the fees specified in that certain letter agreement dated April 29,
1998, between the Borrower and Fleet (as such letter agreement may be amended,
supplemented or otherwise modified from time to time, the "Fee Letter") and due
under and pursuant to such Fee Letter.
(c) Letter of Credit Fees. (i) The Borrower shall pay to the
---------------------
Administrative Agent for the account of each Revolving Lender a commission,
payable in arrears quarterly on the last Business Day of each March, June,
September and December, commencing June 30, 1998, and on the Revolving
Termination Date, on such Lender's Pro Rata Share of the average daily aggregate
Available Amount during such quarter of all Letters of Credit outstanding from
time to time at the rate per annum equal to the Applicable Margin then in effect
for LIBOR Rate Advances under the Revolving Facility; provided, however, that
-------- -------
the Foreign Currency Equivalent of the outstanding Foreign Currency Letter of
Credit shall be determined as of the Business Day immediately preceding the date
of calculation.
(ii) In addition to the foregoing fees described in (i) above, the
Borrower shall pay to the Issuing Bank, for its own account, (x) on the
Available Amount of each Letter of Credit, a fronting fee, for the period from
the date of issuance of such Letter of Credit to and including the termination
thereof, computed at the rate of one quarter of one percent (1/4%) per annum
(or, in respect of the Egerton Letters of Credit, a higher rate to the extent
otherwise
34
agreed by the Borrower and the Issuing Bank), payable in arrears quarterly on
the last Business Day of each March, June, September and December of each year
and on the date of termination thereof; provided, however, that the Foreign
-------- -------
Currency Equivalent of the outstanding Foreign Currency Letter of Credit shall
be determined as of the Business Day immediately preceding the date of
calculation,] and (y) transfer fees and other customary fees and charges in
connection with the issuance or administration of each Letter of Credit as the
Borrower and the Issuing Bank shall agree.
SECTION 2.09 Conversion of Advances.
----------------------
(a) Optional. The Borrower may on any Business Day, upon notice given
--------
to the Administrative Agent not later than 11:00 A.M. (Eastern Standard Time) on
the third (3rd) Business Day prior to the date of the proposed Conversion and
subject to the provisions of Section 2.0 and Section 2.10, Convert all or any
portion of the Advances of one Type comprising the same Borrowing into Advances
of the other Type; provided, however, that any Conversion of LIBOR Rate Advances
-------- -------
into Base Rate Advances shall be made only on the last day of an Interest Period
for such LIBOR Rate Advances, any Conversion of Base Rate Advances into LIBOR
Rate Advances shall be in an amount not less than the minimum amount specified
in subsection 2.01(a), no Conversion of any Advances shall result in more
separate Borrowings than permitted under subsection 2.02(b) and each Conversion
of Advances comprising part of the same Borrowing under any Facility shall be
made ratably among the appropriate Lenders in accordance with their Commitments
under such Facility. Each such notice of Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted and (iii) if such Conversion is into LIBOR Rate
Advances, the duration of the initial Interest Period for such Advances. Each
notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
---------
principal amount of LIBOR Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any LIBOR Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the appropriate
Lenders, whereupon each such LIBOR Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (1) each LIBOR Rate Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance and (2)
the obligation of the Lenders to make, or to Convert Advances into, LIBOR Rate
Advances shall be suspended.
35
SECTION 2.10 Increased Costs, Etc.
--------------------
(a) If, due to either (i) the introduction of or any change in
reserve requirements included in the LIBOR Rate Reserve Percentage, or in the
interpretation of any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or of making, funding or maintaining or
maintaining Letters of Credit or of agreeing to make or of making or maintaining
any Letter of Credit or LIBOR Rate or Base Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (1) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (2) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost; provided, however,
-------- -------
that a Lender claiming additional amounts under this subsection 2.10(a) agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or reasonably expected to be maintained by any Lender
or any corporation controlling such Lender as a result of or based upon the
existence of such Lender's commitment to lend or to issue Letters of Credit
hereunder or the issuance or maintenance of the Letters of Credit, then, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to the Administrative Agent for the account of such
Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend or to issue
Letters of Credit hereunder or to the issuance or maintenance of any Letters of
Credit. A certificate as to such amounts submitted to the Borrower by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any LIBOR Rate Advances under any Facility,
Lenders owed at least 66 2/3% of the then aggregate unpaid principal amount
thereof notify the Administrative Agent that the LIBOR Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their LIBOR Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrower and the
appropriate Lenders, whereupon (i) each such LIBOR Rate Advance under any
36
Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
appropriate Lenders to make, or to Convert Advances into, LIBOR Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower that
such Lenders have determined that the circumstances causing such suspension no
longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its LIBOR Lending
Office to perform its obligations hereunder to make LIBOR Rate Advances or to
continue to fund or maintain LIBOR Rate Advances hereunder, then, on notice
thereof and demand therefor by such Lender to the Borrower through the
Administrative Agent, (i) each LIBOR Rate Advance under each Facility under
which such Lender has a Commitment will automatically, upon such demand, Convert
into a Base Rate Advance and (ii) the obligation of the appropriate Lenders to
make, or to Convert Advances into, LIBOR Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist;
provided, however, that, before making any such demand, such Lender agrees to
-------- -------
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different LIBOR Lending Office if the
making of such a designation would allow such Lender or its LIBOR Lending Office
to continue to perform its obligations to make LIBOR Rate Advances or to
continue to find or maintain LIBOR Rate Advances and would not, in the judgment
of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.11 Payments and Computations.
-------------------------
(a) The Borrower shall make each payment hereunder and under the
Notes, irrespective of any right of counterclaim or set-off (except as otherwise
provided in Section 2.15), not later than 11:00 A.M. Eastern Standard Time) on
the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. Any such payment made on such
date but after such time shall, if the amount paid bears interest, be deemed to
have been made on, and interest shall continue to accrue and be payable thereon
until, the next succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender,
to such Lenders for the account of their respective Applicable Lending Offices
ratably in accordance with the amounts of such respective Obligations then
payable to such Lenders and (ii) if such payment by the Borrower is in respect
of any Obligation then payable hereunder to one Lender, to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 10.07, from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such
37
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender ratably in
accordance with such Lender's proportionate share of the principal amount of all
outstanding Advances and the Available Amount of all Letters of Credit then
outstanding in repayment or prepayment of such of the outstanding Advances or
other Obligations owed to such Lender, and for application to such principal
installments, as the Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder, to charge from time
to time against any or all of the Borrower's accounts with such Lender any
amount so due.
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
fees are payable; provided, that interest on Base Rate Advances shall be
--------
computed on the basis of a year of 365 days. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
-------- -------
interest on or principal of LIBOR Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
38
SECTION 2.12 Taxes.
-----
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with the provisions of Section 2.11, free and clear
of and without deduction for 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 Administrative Agent, net
income taxes that are imposed by the United States and net income taxes (or
franchise taxes imposed in lieu thereof) that are imposed on such Lender or the
Administrative Agent by the state or foreign jurisdiction under the laws of
which such Lender or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Lender, net income
taxes (or franchise taxes imposed in lieu thereof) that are imposed on such
Lender by the state or foreign jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "Taxes").
-----
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower shall indemnify each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes, and for the full amount of
taxes imposed by any jurisdiction on amounts payable under this Section 2.12,
imposed on or paid by such Lender or the Administrative Agent, as the case may
be, and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto, except with respect to any
Lender or the Administrative Agent, as the case may be, for such a liability
arising from such Lender's or the Administrative Agent's, as the case may be,
willful misconduct or gross negligence. This indemnification shall be made
within thirty (30) days from the date on which such Lender or the Administrative
Agent, as the case may be, makes written demand specifying in reasonable detail
the basis therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
the Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 10.02, the original receipt of payment thereof or a certified copy
of such receipt. In the case of any payment hereunder or under the Notes by or
on behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a
39
United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to
furnish, to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e), the terms "United
------
States" and "United States person" shall have the meanings specified in Section
------ --------------------
7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender or Issuing Bank, as the case
may be, and on the date of the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender, and from time to time
thereafter as requested in writing by the Borrower or the Administrative Agent
(but only so long thereafter as such Lender remains lawfully able to do so),
provide each of the Administrative Agent and the Borrower with two original
Internal Revenue Service forms 1001 or 4224, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes. If the forms provided
by a Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless and
until such Lender provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
-------- -------
if at the date of the Assignment and Acceptance pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender reasonably considers to be confidential, the Lender shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Lender shall not be entitled to
indemnification under subsection (a) or (c) with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that should a Lender
-------- -------
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.12 agrees to use reasonable efforts (consistent with its internal
policy and legal and
40
regulatory restrictions) to change the jurisdiction of its LIBOR Lending Office
if the making of such a change would avoid the need for, or reduce the amount
of, any such additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13 Sharing of Payments, Etc.
------------------------
If any Lender shall obtain at any time any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) (a) on
account of Obligations due and payable to such Lender hereunder or under the
Notes at such time in excess of its ratable share (according to the proportion
of (i) the amount of such Obligations due and payable to such Lender at such
time to (ii) the aggregate amount of the Obligations due and payable to all
Lenders hereunder and under the Notes at such time) of payments on account of
the Obligations due and payable to all Lenders hereunder or under the Notes at
such time obtained by all the Lenders at such time or (b) on account of
Obligations owing (but not due and payable) to such Lender hereunder and under
the Notes at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing to such Lender at such
time to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lenders hereunder and under the Notes at such time) of payments
on account of the Obligations owing (but not due and payable) to all Lenders
hereunder and under the Notes at such time obtained by all of the Lenders at
such time, such Lender shall forthwith purchase from the other Lenders such
Participations in the Obligations due and payable or owing to them, as the case
may be, as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that if all or any
-------- -------
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each other Lender shall be rescinded and each such
other Lender shall repay to the purchasing Lender the purchase price to the
extent of such Lender's ratable share (according to the proportion of (i) the
purchase price paid to such Lender to (ii) the aggregate purchase price paid to
all Lenders) of such recovery together with an amount equal to such Lender's
ratable share (according to the proportion of (ii) the amount of such other
Lender's required repayment to (ii) the total amount of such required repayments
to the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.14 Use of Proceeds.
---------------
The proceeds of the Advances and issuances of Letters of Credit shall be
available, and the Borrower shall use such proceeds and Letters of Credit solely
(a) to finance the Acquisition, (b) to refinance certain Existing Debt as
described on Schedule 4.19, (c) to finance acquisitions permitted under Section
-------------
7.04, (d) to repay in full the Egerton GRP Debt and (e) for other working
capital and general corporate purposes.
41
SECTION 2.15 Defaulting Lenders.
------------------
(a) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to
the Borrower and (iii) the Borrower shall be required to make any payment
hereunder or under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower may, so long as no Default shall occur or
be continuing at such time and to the fullest extent permitted by applicable
law, set off and otherwise apply the obligation of the Borrower to make such
payment to or for the account of such Defaulting Lender against the obligation
of such Defaulting Lender to make such Defaulted Advance. In the event that, on
any date, the Borrower shall so set off and otherwise apply its obligation to
make any such payment against the obligation of such Defaulting Lender to make
any such Defaulted Advance on or prior to such date, the amount so set off and
otherwise applied by the Borrower shall constitute for all purposes of this
Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date under the Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such Advance
shall be a Base Rate Advance and shall be considered, for all purposes of this
Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01, even if the other Advances comprising such Borrowing shall be LIBOR Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (i) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (ii) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lenders and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lenders and
to the fullest extent permitted by applicable law, apply at such time the amount
so paid by the Borrower to or for the account of such Defaulting Lender to the
payment of each such Defaulted Amount to the extent required to pay such
Defaulted Amount. In the event that the Administrative Agent shall so apply any
such amount to the payment of any such Defaulted Amount on any date, the amount
so applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents, payment, to such extent, of such
Defaulted Amount on such date. Any such amount so applied by the Administrative
Agent shall be retained by the Administrative Agent or distributed by the
Administrative Agent to such other Lenders, ratably in accordance with the
respective portions of such Defaulted Amounts payable at such time to the
Administrative Agent and such other Lenders and, if the amount of such payment
made by the
42
Borrower shall at such time be insufficient to pay all Defaulted Amounts owing
at such time to the Administrative Agent and the other Lenders, in the following
order of priority:
first, to the Administrative Agent for any Defaulted Amount then
-----
owing to the Administrative Agent; and
second, to the Lenders for any Defaulted Amounts then owing to such
------
Lenders, ratably in accordance with such respective Defaulted Amounts then owing
to such Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any
other Lender shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such other Lender shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow
under this subsection (c) shall be deposited by the Administrative Agent in an
account with Fleet, in the name and under the control of the Administrative
Agent, but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be Fleet's
standard terms applicable to escrow accounts maintained with it. Any interest
credited to such account from time to time shall be held by the Administrative
Agent in escrow under, and applied by the Administrative Agent from time to time
in accordance with the provisions of, this subsection (c). The Administrative
Agent shall, to the fullest extent permitted by applicable law, apply all funds
so held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender, as and when such Advances or amounts
are required to be made or paid and, if the amount so held in escrow shall at
any time be insufficient to make and pay all such Advances and amounts required
to be made or paid at such time, in the following order of priority:
first, to the Administrative Agent for any amount then due and
-----
payable by such Defaulting Lender to the Administrative Agent hereunder;
second, to the Lenders for any amount then due and payable by such
------
Defaulting Lender to such Lenders hereunder, ratably in accordance with such
respective amounts then due and payable to such Lenders; and
43
third, to the Borrower for any Advance then required to be made by
-----
such Defaulting Lender pursuant to a Commitment of such Defaulting Lender.
In the event that any Lender that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Administrative Agent in
escrow at such time with respect to such Lender shall be distributed by the
Administrative Agent to such Lender and applied by such Lender to the
Obligations owing to such Lender at such time under this Agreement and the other
Loan Documents in such manner as the Administrative Agent shall reasonably
direct.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that the Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Defaulted Amount.
SECTION 2.16 Domicile of Loans.
-----------------
Each Lender may transfer and carry its Loans at, to or for the account of
any office, subsidiary or affiliate of such Lender. Notwithstanding anything to
the contrary contained herein, to the extent that a transfer of Loans pursuant
to this Section 2.16 would, at the time of such transfer, result in increased
costs under Section 2.10 or 2.12 hereof from those being charged by the
respective Lender prior to such transfer, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective transfer.)
44
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.
---------------------------------------------------
The obligation of each Lender to make an Advance or of the Issuing Bank to
issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of each of the following conditions
precedent before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent and the Lenders, and in sufficient copies (except for the Notes), for each
Lender:
(i) The Notes payable to the order of the Lenders.
(ii) One or more pledge agreements in form and substance
satisfactory to the Administrative Agent (as hereafter amended, supplemented or
otherwise modified from time to time, together with each other pledge agreement
relating to securities delivered pursuant to Section 6.13, in each case
individually and collectively, the "Pledge Agreement") pursuant to which not
less than 65% of the issued and outstanding capital stock of each of the
Borrower's Foreign Subsidiaries shall be pledged to the Administrative Agent as
security for the Obligations, together with the certificates representing all
shares pledged thereunder and undated stock powers executed in blank with
respect thereto.
(iii) A security agreement in form and substance satisfactory
to the Administrative Agent (as hereafter amended, supplemented or otherwise
modified from time to time, together with each other security agreement
delivered pursuant to Section 6.13, in each case as amended, supplemented or
otherwise modified from time to time in accordance with its terms, each a
"Security Agreement") granting to the Administrative Agent, for the ratable
benefit of the Lenders, a first priority security interest in all of the
personal property and assets of the Borrower and its Domestic Subsidiaries (to
the extent required by the Administrative Agent) and all proceeds thereof,
whether now or hereafter arising or existing, and wherever located duly executed
by the Borrower, together with:
(1) acknowledgment copies or stamped receipt copies of proper
financing statements, duly filed before the day of the Initial Extension of
Credit under the Uniform Commercial Code in all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests created under the
Security Agreement, covering the Collateral described in the Security Agreement;
(2) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing all other effective
financing statements filed in the
45
jurisdictions referred to in clause (1) above that name the Borrower, or any
other Loan Party as debtor, together with copies of such other financing
statements;
(3) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the Liens
created thereby;
(4) evidence of the insurance required by the terms of the
Security Agreement;
(5) copies of the Assigned Agreements, if any, referred to
in the Security Agreement;
(6) an original executed promissory note issued by Egerton
Holdings payable to the order of the Borrower representing amounts advanced by
the Borrower to repay the Egerton GRP Debt and duly endorsed to the order of the
Administrative Agent by the Borrower (the "Egerton Intercompany Debt" (except
-------------------------
that no such note shall be required if the Borrower makes a capital contribution
rather than an advance to Egerton Holdings in respect of the foregoing and such
promissory note shall not be required to be delivered until the date of advance
by the Borrower of such amounts); and
(7) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security Agreement has
been taken.
(iv) (A) Fully executed counterparts of Mortgages duly executed
by the applicable Loan Party, together with evidence that counterparts of the
Mortgages have been delivered to a title insurance company (reasonably
acceptable to the Lenders) insuring the Lien of the Mortgages for recording in
all places to the extent necessary or desirable, in the reasonable judgment of
the Lenders, to create a valid and enforceable first priority lien on each
Mortgaged Property (subject only to Permitted Real Property Encumbrances) in
favor of Administrative Agent (or a trustee acting on behalf of Administrative
Agent required or desired under local law) for the benefit of the Secured
Parties;
(B) Mortgagee title insurance policies (or binding
commitments to issue such title insurance policies) which shall (1) be issued to
Administrative Agent for the benefit of the Secured Parties by title insurance
companies reasonably satisfactory to the Lenders (the "Mortgage Policies") in
-----------------
amounts reasonably satisfactory to the Lenders insuring that the Mortgages are
valid and enforceable first priority mortgage liens on the respective Mortgaged
Properties, free and clear of all defects, encumbrances and other Liens except
Permitted Real Property Encumbrances, (2) be in form and substance reasonably
satisfactory to the Lenders, (3) include, as appropriate, an endorsement for
future advances under this Agreement, the Notes and the Mortgages and such other
endorsements that the Lenders in their discretion may reasonably request, (4)
not include an exception for mechanics' liens, and (5) provide for
46
affirmative insurance and such reinsurance (including direct access agreements)
as the Lenders in their discretion may reasonably request;
(C) Surveys, in form and substance satisfactory to the Lenders, of
each Mortgaged Property listed on Schedule 4.01, dated a recent date reasonably
-------------
acceptable to the Lenders, certified by a licensed professional surveyor in a
manner satisfactory to the Lenders for the benefit of the Lenders; and
(D) Real estate appraisals, in form and substance satisfactory to the
Lenders of each of the Mortgaged Properties, dated a recent date acceptable to
Administrative Agent, which appraisals shall comply with all applicable law,
including the requirements set forth in 12 C.F.R., Part 34-Subpart C, or any
successor or similar statute, rule, regulation, guideline or order and which
appraisals shall be certified by the appraiser as complying with all such
applicable law.
(v) An intellectual property security agreement in form and substance
satisfactory to the Administrative Agent granting to the Administrative Agent
for the ratable benefit of the Lenders a first and only priority security
interest in all of each Borrower's and each of its Domestic Subsidiaries'
intellectual property (together with each other intellectual property security
agreement delivered pursuant to Section 6.13, in each case as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, each an "Intellectual Property Security Agreement"), duly executed by
-----------------------------------------
the Borrower and each such Domestic Subsidiary, together with evidence that all
action that the Administrative Agent may deem necessary or desirable in order to
perfect and protect the first and only priority liens and security interests
created under the Intellectual Property Security Agreement has been taken.
(vi) One or more guaranties in form and substance satisfactory to
the Administrative Agent (as hereafter amended, supplemented or otherwise
modified from time to time individually and collectively, the "Guaranty"), duly
--------
executed by each Domestic Subsidiary of the Borrower in existence on the Closing
Date, except to the extent otherwise agreed to by the Administrative Agent.
(vii) Certified copies of resolutions of the Board of Directors of
the Borrower and each other Loan Party approving the Acquisition, this
Agreement, the Notes, and each other Loan Document and Acquisition Document to
which it is or is to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and consents,
if any, with respect to the Acquisition, this Agreement, the Notes, and each
other Loan Document and Acquisition Document.
(viii) A copy of the charter of the Borrower and each other
Loan Party and each amendment thereto, certified (as of a date reasonably near
the date of the Initial Extension of Credit) by the Secretary of State of the
jurisdiction of its incorporation as being a true and correct copy thereof.
47
(ix) A copy of a certificate of the Secretary of State of the
jurisdiction of its incorporation, dated within five (5) Business Days prior to
the date of the Initial Extension of Credit, listing the charter of the Borrower
and each other Loan Party and each amendment thereto on file in its office and
certifying that (1) such amendments are the only amendments to the Borrower's or
such other Loan Party's charter on file in its office, (2) the Borrower and each
other Loan Party have paid all franchise taxes to the date of such certificate
and (3) the Borrower and each other Loan Party are duly incorporated and in good
standing under the laws of the State of the jurisdiction of its incorporation.
(x) A copy of a certificate of the Secretary of State of each State
listed on Schedule 3.01(a)(x), dated reasonably near the date of the Initial
-------------------
Extension of Credit, stating that the Borrower and each other Loan Party are
duly qualified and in good standing as foreign corporations in such State and
have filed all annual reports required to be filed to the date of such
certificate.
(xi) A certificate of the Borrower and each other Loan Party signed
on behalf of the Borrower or such other Loan Party, as the case may be, by a
Responsible Officer and the Secretary or an Assistant Secretary of the Borrower
or such other Loan Party, as the case may be, dated the date of the Initial
Extension of Credit (the statements made in such certificate shall be true on
and as of the date of the Initial Extension of Credit), certifying as to (1) the
absence of any amendments to the charter of the Borrower or such other Loan
Party since the date of the Secretary of State's certificate referred to above,
(2) a true and correct copy of the bylaws of the Borrower and each other Loan
Party as in effect on the date of the Initial Extension of Credit, (3) the due
incorporation and good standing of the Borrower and each other Loan Party as a
corporation organized under the laws of the jurisdiction of its incorporation,
and the absence of any proceeding for the dissolution or liquidation of the
Borrower or any other Loan Party, (4) the truth of the representations and
warranties contained in any Pre-Commitment Information, the Loan Documents and
the Acquisition Documents as though made on and as of the date of the Initial
Extension of Credit, (5) the satisfaction of the conditions precedent required
of the Borrower and its Subsidiaries as set forth in this Section 3.01, and (6)
the absence of any event occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.
(xii) A certificate of the Secretary or an Assistant Secretary of the
Borrower and each other Loan Party certifying the names and true signatures of
the officers of the Borrower and each other Loan Party authorized to sign this
Agreement, the Notes, each other Loan Document to which they are or are to be
parties and the other documents to be delivered hereunder and thereunder.
(xiii) A Notice of Borrowing.
(b) The Lenders shall have completed a due diligence investigation of
the Borrower and its Subsidiaries in scope, and with results, satisfactory to
the Lenders; the Borrower and each of the other Loan Parties shall have given
the Administrative Agent such access to their respective books and records as
the Administrative Agent may have requested in order to carry
48
out its investigations, appraisals and analyses; and the Lenders shall have
received all additional financial, business and other information regarding the
Borrower and its Subsidiaries and proper ties as they shall have reasonably
requested; and all of the information provided by or on behalf of the Borrower
or any of its Subsidiaries to the Administrative Agent and the Lenders prior to
their commitment in respect of the Facilities (the "Pre-Commitment Information")
--------------------------
shall be true and correct in all material respects, and no development or change
shall have occurred, and no additional information shall have come to the
attention of the Administrative Agent or the Lenders, that (I) has resulted in
or could reasonably be expected to result in a material change in, or material
deviation from, the Pre-Commitment Information or (ii) has had or could
reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent and the Lenders shall have received and
reviewed copies of all of the Acquisition Documents, each of which shall be
certified as true and correct by an officer of the Borrower and shall be in full
force and effect, and the Administrative Agent and the Lenders shall be
satisfied with the final terms and conditions thereof, and the Acquisition shall
be consummated (concurrently with the Initial Extension of Credit) pursuant to
the terms and conditions of the Acquisition Documents (and none of the material
terms or conditions of the Acquisition shall have been waived or modified except
with the consent of the Administrative Agent and the Required Lenders) and in
compliance with all applicable laws and with all necessary consents and
approvals, and the final term and conditions of the Acquisition and the
resulting corporate structure of the Borrower and its Subsidiaries following the
Acquisition shall be satisfactory in all respects to the Administrative Agent
and the Lenders.
(d) The Borrower shall have delivered to the Administrative Agent
certified copies of each (i) employment agreement and other compensation
arrangement with each executive officer of each Loan Party, each of which shall
be satisfactory to the Administrative Agent and the Lenders in form and
substance and the Borrower shall have entered into satisfactory management
and/or employment contracts with such key executives as the Administrative Agent
shall have designated, and (ii) Material Contract which the Administrative Agent
shall have requested.
(e) The Initial Lenders shall be satisfied with the results of any
field audit of the Borrower and its Subsidiaries.
(f) The Administrative Agent and the Lenders shall have received and
reviewed with respect to the Borrower and its Subsidiaries and with respect to
Egerton and its Subsidiaries, (i) audited annual financial statements dated
December 31, 1997 and December 31, 1996, and (ii) the Pro Forma Financials as of
the Closing Date after giving effect to the Acquisition, together with 3-year
projections including balance sheets, and statements of income and cash flow,
prepared by Borrower's management, all in form and substance reasonably
satisfactory to the Lenders.
(g) There shall have occurred no material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the
49
Borrower and its Subsidiaries, taken as a whole, or Egerton and its
Subsidiaries, taken as a whole since December 31, 1997.
(h) All governmental and third party consents and approvals necessary
in connection with each aspect of the Acquisition and the Facilities shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Initial Lenders) and shall remain in effect; all applicable waiting
periods shall have expired without any adverse action being taken by any
competent authority; and no law or regulation shall be applicable in the
reasonable judgment of the Lenders that restrains, prevents or imposes
materially adverse conditions upon any aspect of the Acquisition or the
Facilities; and the operations of the Borrower and its Subsidiaries shall comply
in all material respects with all applicable Federal, state and local law.
(i) The Borrower shall have demonstrated to the Administrative
Agent's satisfaction that (i) the operations of the Borrower and its
Subsidiaries and Egerton and its Subsidiaries comply in all material respects
with applicable Environmental Laws and health and safety statutes and
regulations, including, without limitation (as to the foregoing entities to
which they may be applicable), regulations promulgated under the Federal
Resource Conservation and Recovery Act; (ii) such operations are not the subject
of any Environmental Actions requiring an expenditure which could have a
Material Adverse Effect on the Borrower and its Subsidiaries, taken as a whole,
or on Egerton and its Subsidiaries, taken as a whole, to respond to such
Environmental Actions; (iii) neither the Borrower nor any other Loan Party has
or could reasonably be expected to have any contingent liability which could
have a Material Adverse Effect on the Borrower and its Subsidiaries, taken as a
whole, or on Egerton and its Subsidiaries, taken as a whole, in connection with
any Environmental Action; and (iv) the Borrower has completed such environmental
audits and investigations as the Administrative Agent may have requested with
respect to the operations of the Borrower and its Subsidiaries or on Egerton and
its Subsidiaries, taken as a whole, and such audits and investigations have not
uncovered any condition or conditions not disclosed in the Pre-Commitment
Information which could be reasonably expected to have a Material Adverse Effect
on the Borrower and its Subsidiaries, taken as a whole.
(j) Other than the litigation described in Schedule 4.09 (the
-------------
"Disclosed Litigation"), there shall exist no action, suit, investigation,
---------------------
litigation or proceeding pending or threatened in any court or before any
arbitrator or governmental or regulatory agency or authority that (i) could
reasonably be expected to (1) have a material adverse effect on the business,
condition (financial or otherwise), operations, performance, or properties of
the Borrower and its Subsidiaries, taken as a whole, or Egerton and its
Subsidiaries, taken as a whole, (2) adversely affect the ability of the Borrower
or any other Loan Party to perform its obligations under the Loan Documents or
(3) adversely affect the rights and remedies of the Administrative Agent and the
Lenders under the Loan Documents or (ii) purports to adversely affect any aspect
of the Facilities or any transaction contemplated hereby including, but not
limited to the Acquisition (collectively, a "Material Adverse Effect"); and
---------------------------
there shall have been no material adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries or Egerton and its
Subsidiaries of the Disclosed Litigation from that described on Schedule 4.09.
-------------
50
(k) The Lenders shall be satisfied that (i) the Borrower and its
Subsidiaries will be able to meet their respective obligations under all
employee and retiree welfare plans, (ii) the employee benefit plans of the
Borrower and its Subsidiaries are, in all material respects, funded in
accordance with the minimum statutory requirements, (iii) no material
"reportable event" (as defined in ERISA, but excluding events for which
reporting has been waived) has occurred as to any such employee benefit plan and
(iv) no termination of, or withdrawal from, any such employee benefit plan has
occurred or is contemplated that could reasonably be expected to result in a
material liability.
(l) The Lenders shall be satisfied with the amount, types and terms
and conditions of all insurance maintained by or, after giving effect to the
consummation of the Acquisition to be maintained by, the Borrower and its
Subsidiaries.
(m) The Lenders shall have received satisfactory opinions of counsel
for the Borrower, the Guarantors and any other Subsidiary and of local and
special counsel to the extent requested by the Administrative Agent, as to the
transactions (including the Acquisition) contemplated hereby.
(n) The Lenders shall be satisfied that all Existing Debt, other
than Debt identified on Schedule 4.19 as surviving the Closing Date (the
-------------
"Surviving Debt"), has been (or concurrently herewith will be) prepaid, redeemed
---------------
or defeased in full or otherwise satisfied and extinguished and all such
Surviving Debt shall be on terms and conditions satisfactory to the Lenders.
(o) There shall exist no Default or Event of Default under any of
the Loan Documents, and all legal matters incident to the Initial Extension of
Credit shall be satisfactory to counsel for the Administrative Agent.
(p) All accrued fees and expenses of the Administrative Agent
(including $6,850 in travel expenses of the Administrative Agent incurred prior
to the date hereof) and the Lenders (including the reasonable fees and expenses
of counsel for the Administrative Agent and local counsel for the Administrative
Agent) shall have been paid.
(q) All Advances made under this Agreement shall be in full
compliance with all applicable requirements of law, including, without
limitation, Regulations G, T, U, and X.
(r) If requested by the Administrative Agent, the Administrative
Agent shall have received duly executed and delivered counterparts of landlord
waivers from all landlords and leasehold mortgage holders with respect to any
Collateral located at a location that is not owned by the Borrower, as deemed
necessary or desirable in the Administrative Agent's sole discretion, to
preserve or otherwise protect the Administrative Agent's rights in such
Collateral.
(s) The Administrative Agent shall have received copies of all of the
Egerton Consideration Documents, each of which shall be certified as true and
correct by an officer of
51
the Borrower and shall be in full force and effect, and the Administrative Agent
shall be satisfied with the terms and conditions thereof.
(t) The Administrative Agent shall have received an original of a
post-closing agreement (the "Post-Closing Agreement") duly executed by the
Borrower and the Administrative Agent for the benefit of the Lenders in form and
substance satisfactory to the Administrative Agent.
(u) The Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the Administrative Agent
may reasonably request, and all legal matters incident to such Borrowing shall
be satisfactory to counsel for the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance.
---------------------------------------------------
The obligation of each Lender to make any Advance after the Initial
Extension of Credit (other than a Letter of Credit Advance made by the Issuing
Bank or a Revolving Lender pursuant to Section 2.03(c)) and the obligation of
the Issuing Bank to issue a Letter of Credit (including the initial issuance
thereof) or renew a Letter of Credit and the right of the Borrower to request
the issuance or renewal of a Letter of Credit, shall each be subject to the
further conditions precedent that on the date of each such Borrowing or issuance
or renewal:
(a) Each of the conditions precedent listed in Section 3.01 shall
have been satisfied or waived in accordance with this Agreement.
(b) The following statements shall be true and the Administrative
Agent shall have received a certificate signed by a duly authorized officer of
the Borrower, dated the date of such Borrowing or issuance or renewal, stating
that (and the giving of the applicable Notice of Borrowing, or Notice of
Issuance or Notice of Renewal and the acceptance by the Borrower of the proceeds
of a Borrowing or of a Letter of Credit or the renewal of a Letter of Credit
shall constitute a representation and warranty by the Borrower that both on the
date of such notice and on the date of such Borrowing or issuance or renewal
such statements are true):
(i) the representations and warranties contained in each Loan Document
are correct on and as of such date, before and after giving effect to such
Borrowing or issuance or renewal and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the proceeds
therefrom, that consti tutes a Default; and
(iii) for each Revolving Advance or issuance or renewal of any Letter
of Credit, the aggregate principal amount of the Revolving Advances plus Letter
----
of Credit Advances plus the aggregate Available Amount of all Letters of Credit
----
then outstanding after
52
giving effect to such Advance or issuance or renewal do not exceed the aggregate
Letter of Credit Facility and Revolving Facility taken together.
(c) If the Egerton Letters of Credit are to be issued, (i) the
Administrative Agent shall have received copies of the executed Egerton Letters
of Credit in form and substance satisfactory to the Administrative Agent and
(ii) Fleet and the Borrower shall have entered into such documents as may be
required by Fleet, all in form and substance satisfactory to the Administrative
Agent.
(d) The Administrative Agent shall have received such other approvals,
opinions or documents as any appropriate Lender through the Administrative Agent
may reasonably request, and all legal matters incident to such Borrowing or
issuance of such Letter of Credit shall be satisfactory to counsel for the
Administrative Agent.
SECTION 3.03. Determinations Under Section 3.01.
---------------------------------
For purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lenders unless an officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have received written
notice from such Lender prior to the Initial Extension of Credit specifying its
objection thereto and such Lender shall not have made available to the
Administrative Agent such Lender's ratable portion of such Borrowing.
53
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby makes the following representations and warranties to
the Lenders and the Administrative Agent in each case immediately before and
after giving effect to the transactions contemplated by the Acquisition
Agreement:
SECTION 4.01. Corporate Existence.
-------------------
Each Loan Party (a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation, (b) is
duly qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure to so
qualify or be licensed could not reasonably be expected to have a Material
Adverse Effect and (c) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
SECTION 4.02. Organization and Subsidiaries.
-----------------------------
Set forth on Schedule 4.02 hereto is a complete and accurate list of the
-------------
Borrower and all Subsidiaries of each Loan Party, showing as of the date hereof
(and updated on a quarterly basis to reflect changes permitted under this
Agreement) the jurisdiction of its incorporation or formation, the number of
shares of each class of capital stock or other equity interests authorized, and
the number outstanding, and as to each of them that is a legal entity other than
a corporation (but not a natural person), and the owners of such equity
interests (including the identity of any partner thereof as a general or limited
partner), in each case after giving effect to the Acquisition and the percentage
of the outstanding shares or other interests of each such class owned (directly
or indirectly) by such Loan Party and the number of shares or other interests
covered by all outstanding options, warrants, rights of conversion or purchase
and similar rights after giving effect to the Acquisition. All of the
outstanding capital stock or other interests of all of the Borrower and each of
such Subsidiaries has been validly issued, is fully paid and non-assessable and
is owned by such Loan Party or one or more of its Subsidiaries free and clear of
all Liens, except those created under the Collateral Documents. The Borrower
and each such Subsidiary (a) is a corporation or partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, (b) is duly qualified and in good standing as a
foreign corporation or partnership in each other jurisdiction in which it owns
or leases property or in which the conduct of its business requires it to so
qualify or be licensed, except where the failure to so qualify or be licensed
could not reasonably be expected to have a Material Adverse Effect, and (c) has
all requisite power (corporate or otherwise) and authority (including, without
limitation, all governmental licenses, permits and other approvals) to own or
lease and operate its properties and to carry on its business as now conducted
and as proposed to be conducted.
54
SECTION 4.03 Corporate Power, Authorization.
------------------------------
The execution, delivery and performance by each Loan Party of this
Agreement, the Notes, each other Loan Document and each Acquisition Document to
which it is or is to be a party, and the consummation of the Acquisition and the
other transactions contemplated hereby, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene such Loan Party's charter or bylaws, (b) violate any law
(including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule,
regulation (including, without limitation, Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (c) conflict with or result in the breach of, or
constitute a default under, any material contract, loan agreement, indenture,
mortgage, deed of trust, lease or other material instrument or agreement binding
on or affecting any Loan Party any of their respective properties or (d) except
for the Liens created under the Collateral Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of any Loan Party. No Loan Party or any of its Subsidiaries is in violation of
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument or agreement, the
violation or breach of which could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.04 Governmental Authorizations, Approvals.
--------------------------------------
No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third party is
required for (a) the due execution, delivery, recordation, filing or performance
by any Loan Party of this Agreement, the Notes or any other Loan Document or any
Acquisition Document to which it is or is to be a party, or for the consummation
of the Acquisition or the other transactions contemplated hereby, (b) the grant
by any Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (c) the perfection or maintenance of the Liens created by the
Collateral Documents (including the first priority nature thereof) or (d) the
exercise by the Administrative Agent or any Lender of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices
and filings listed on Schedule 4.04, all of which have been duly obtained,
-------------
taken, given or made and are in full force and effect. All applicable waiting
periods in connection with the Acquisition and the other transactions
contemplated hereby have expired without any action having been taken by any
competent authority restraining, preventing or imposing materially adverse
conditions upon the Acquisition, the transactions contemplated hereby or the
rights of the Loan Parties freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of
them.
55
SECTION 4.05 Enforceable Obligations.
-----------------------
This Agreement and each Acquisition Document has been, and each of the
Notes and each other Loan Document has been or when delivered hereunder will
have been, duly executed and delivered by each Loan party thereto. This
Agreement and each Acquisition Document is, and each of the Notes and each other
Loan Document has been or when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party thereto, enforceable against such Loan
Party in accordance with its terms.
SECTION 4.06 Financial Statements.
--------------------
The Consolidated balance sheets of the Borrower and its Subsidiaries and
each other entity to which it relates as at December 31, 1997, and the related
Consolidated statements of income and Consolidated statements of cash flows of
the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by
(in the case of such Consolidated financial statements) an opinion of Xxxxx
Xxxxxxxx LLP, independent public accountants, fairly present the Consolidated
financial condition of the Borrower and its Subsidiaries as at such date and the
Consolidated results of operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with GAAP applied on a consistent
basis. Since December 31, 1997, there has been no material adverse change in
(a) the business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party and its Subsidiaries (taken as a
whole), (b) the ability of the Borrower or any other Loan Party to perform its
obligations under the Loan Documents or (c) any material aspect of the
Acquisition.
SECTION 4.07 Pro Forma.
---------
The Consolidated Pro Forma Financials of the Borrower and its Subsidiaries
as at the Closing Date (including the related Consolidated pro forma statement
of income and cash flows of the Borrower and its Subsidiaries for the period
then ended), certified by the chief financial officer of the Borrower fairly
present the Consolidated pro forma financial condition of the Borrower and its
Subsidiaries as at such date and the Consolidated pro forma results of
operations of the Borrower and its Subsidiaries for the period ended on such
date, in each case after giving effect to the Acquisition and the other
transactions contemplated hereby, all in accordance with GAAP.
SECTION 4.08 Accurate Information. None of the Pre-Commitment
--------------------
Information or any information, exhibit or report furnished by any Loan Party to
the Administrative Agent or any Lender in connection with the Loan Documents or
pursuant to the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
SECTION 4.09 No Litigation. Other than the Disclosed Litigation, there
-------------
is no action, suit, investigation, litigation or proceeding affecting the
Borrower or any other Loan Party or to the best of the Borrower's knowledge, any
professional officer, director, employee or contractor (insofar as related to
any services rendered in respect of the Borrower or any of its Subsidiaries
56
by any such officer, director, employee or contractor) of any of the foregoing
including, without limitation, any Regulatory Agency or Environmental Action,
pending or threatened before any court, governmental bureau, authority or agency
or arbitrator involving in the case of any court, bureau or agency proceeding, a
claim in excess of $250,000 or which could reasonably be expected to have a
Material Adverse Effect, and there has been no material adverse change in the
status, or financial effect on any Loan Party of the Disclosed Litigation from
that described on Schedule 4.09 nor, to the best of the Borrower's knowledge, is
-------------
there any reasonable basis for the institution of any such action or proceeding
that is probable of assertion, nor are there any such actions or proceedings in
which the Borrower or any other Loan Party is a plaintiff or complainant.
SECTION 4.10 Regulation U.
------------
Neither the Borrower nor any of its Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing or carrying Margin
Stock (as such term is used in Regulation U.
SECTION 4.11 ERISA.
-----
(a) Except as set forth on Schedule 4.11 hereto, none of the Borrower, or
-------------
any of its ERISA Affiliates maintains or has maintained any Plans or
Multiemployer Plans. Set forth on Schedule 4.11 is a complete and accurate list
-------------
of all Welfare Plans and all defined contribution plans in respect of which any
Loan Party could have liability.
(b) Except as set forth in the financial statements referred to in Section
4.06 herein and in Sections 5.03 and 5.04 none of the Borrower or any of the
other Loan Parties has any material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of Financial
Accounting Standards No. 106.
SECTION 4.12 Material Adverse Effect.
-----------------------
Neither the business nor the properties of any Loan Party are affected by
any fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could reasonably be expected
to have a Material Adverse Effect.
SECTION 4.13 Environmental Matters.
---------------------
(a) The operations and properties of each Loan Party comply in all
known material respects with all applicable Environmental Laws and Environmental
Permits, all known past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing obligations or costs,
and no circumstances exist that could reasonably be expected to (i) form the
basis of an Environmental Action against any Loan Party or any of their
properties that could reasonably be expected to have a Material Adverse Effect
or (ii) cause any
57
such property to be subject to any material restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(b) Except as disclosed in the environmental assessment reports listed
on Schedule 4.13 hereto and except for disclosures which would not either
-------------
individually or in the aggregate be material to the Borrower or any other Loan
Party, (i) none of the properties currently or formerly owned or operated by any
Loan Party is listed or proposed for listing on the NPL or on the CERCLIS or any
analogous foreign, state or local list or is adjacent to any such property; (ii)
there are no and, to the best of its knowledge, never have been any underground
or aboveground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or, to the best of its
knowledge, have been treated, stored or disposed on any property currently owned
or operated by any Loan Party or on any property formerly owned or operated by
any Loan Party; (iii) there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party; and (iv) Hazardous
Materials have not been released, discharged or disposed of on any property
currently owned or operated by any Loan Party, or any property formerly owned or
operated by any Loan Party.
(c) Except as disclosed in the environmental assessment reports listed
on Schedule 4.13, no Loan Party is undertaking, and has not completed, either
-------------
individually or together with other potentially responsible parties, any
investigation or assessment or Remedial, Response or Removal action relating to
any actual or threatened release, discharge or disposal of Hazardous Materials
at any site, location or operation, either voluntarily or pursuant to the order
of any governmental or regulatory authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used, treated, handled
or stored at, or transported to or from, any property currently owned or
operated by any Loan Party or any property formerly owned or operated by any
Loan Party have been disposed of in a manner not reasonably expected to result
in material liability to any Loan Party.
SECTION 4.14 Restrictive Agreements
----------------------
Except as set forth on Schedule 4.14, no Loan Party is a party to any
-------------
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.15 Liens and Security Interests.
-----------------------------
The Collateral Documents create in favor of the Administrative Agent, for
the ratable benefit of the Lenders, a valid and perfected first priority
security interest in the Collateral (which Collateral securing the payment of
the Obligations, and all filings and other actions necessary or reasonably
desirable to perfect and protect such security interest have been duly taken.
The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or
expressly permitted under the Loan Documents.
58
SECTION 4.16 Taxes.
-----
(a) Each Loan Party has filed, has caused to be filed or has been
included in all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes shown thereon to be due, together with applicable
interest and penalties.
(b) Set forth on Schedule 4.16 is a complete and accurate list of each
-------------
taxable year of each Loan Party for which Federal income tax returns have been
filed and for which the expiration of the applicable statute of limitations for
assessment or collection has not occurred by reason of extension or otherwise
(an "Open Year").
---------
(c) There is no unpaid amount of adjustments to the Federal income tax
liability of each Loan Party proposed by the Internal Revenue Service with
respect to Open Years. No issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(d) There is no unpaid amount of adjustments to the state, local and
foreign tax liability of each Loan Party proposed by any state, local or foreign
taxing authorities (other than amounts arising from adjustments to Federal
income tax returns). No issues have been raised by such taxing authorities
that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(e) Except to the extent effected by the consummation of the
Acquisition, no "ownership change" as defined in Section 382(g) of the Internal
Revenue Code, and no event that would result in the application of the "separate
return limitation year" or "consolidated return change of ownership" limitations
under the Federal income tax consolidated return regulations, has occurred with
respect to any Loan Party.
SECTION 4.17 Compliance with Securities Laws.
-------------------------------
No Loan Party is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended. Neither
the making of any Advances, nor the issuance of any Letters of Credit, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the Acquisition or the other transactions contemplated hereby,
will violate any provision of such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder or any takeover, disclosure or
other federal, state or foreign securities law or Regulations G, T, U or X of
the Federal Reserve Board. The Borrower is not subject to regulation under any
federal, state or foreign statute or regulation which limits its ability to
incur Indebtedness.
SECTION 4.18 Solvency.
--------
Each Loan Party is, individually and together with its Subsidiaries,
Solvent.
59
SECTION 4.19 Debt
----
Set forth on Schedule 4.19 is a complete and accurate list of all Debt of
-------------
the Borrower (the "Existing Debt") the principal amount of which is greater than
-------------
$250,000, showing as of the date hereof the principal amount outstanding
thereunder, the maturity date thereof and the amortization schedule therefor.
SECTION 4.20 No Defaults, Compliance With Laws.
---------------------------------
(a) Except as set forth on Schedule 4.20 hereto, neither the Borrower
-------------
nor any other Loan Party is in default under any agreement, ordinance,
resolution, decree, bond, note, indenture, order or judgment to which it is a
party or by which it is bound, or any other agree ment or other instrument by
which any of the properties or assets owned by it or used in the conduct of its
business is affected, which default could have a Material Adverse Effect.
(b) The Borrower, each other Loan Party and each professional officer,
director, employee or contractor of any of the foregoing (in so far as related
to services provided in respect of the Borrower or any Subsidiary by any such
officer, director, employee or contractor) has complied and is in compliance in
all respects with all applicable laws, rules, ordinances, regulations,
resolutions, orders, writs, decrees and other similar documents and instruments
of all courts and governmental authorities, bureaus and agencies, domestic and
foreign, including, without limitation, any Regulatory Agency and all applicable
provisions of the Americans with Disabilities Act (42 U.S.C. (S)12101-12213) and
the regulations issued thereunder and all applicable Environmental Laws and
Regulations, non-compliance with which could have a Material Adverse Effect.
SECTION 4.21 Owned Real Property.
-------------------
Set forth on Schedule 4.21 is a complete and accurate list of all real
--------------
property owned by any Loan Party showing as of the date hereof the street
address, county or other relevant jurisdiction, state, record owner and book and
estimated fair value thereof. Such Loan Party has good, marketable and
insurable fee simple title to such real property, free and clear of all Liens,
other than Permitted Real Property Encumbrances. The Mortgages create, as
security for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and Lien on all of the Mortgaged
Property (and will create a valid and enforceable perfected security interest in
and Lien on all fixtures and improvements related to such Mortgaged Property and
affixed or added thereto on or after the Closing Date) in favor of the
Administrative Agent (or such other trustees that may be named therein) for the
benefit of the Secured Parties, superior to and prior to the rights of all third
Persons (except that the security interest created in the Mortgaged Property may
be subject to the Permitted Real Property Encumbrances related thereto) and
subject to no other Liens (other than Permitted Real Property Encumbrances).
60
SECTION 4.22 Leased Real Property.
--------------------
Set forth on Schedule 4.22 is a complete and accurate list of all leases
-------------
of real property under which any Loan Party is the lessee, showing as of the
date hereof the street address, county or other relevant jurisdiction, state,
lessor, lessee, expiration date and annual rental cost thereof. To the best
knowledge of each Loan Party, each such lease is the legal, valid and binding
obligation of the lessor thereof, enforceable in accordance with its terms.
SECTION 4.23 Material Contracts.
------------------
Set forth on Schedule 4.23 is a complete and accurate list of all Material
-------------
Contracts of each Loan Party showing as of the date hereof the parties, subject
matter and term thereof. Except as could not reasonably be expected to have a
Material Adverse Effect, each such Material Contract has been duly authorized,
executed and delivered by all parties thereto, has not been amended or otherwise
modified, is in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms. There exists no
material default under any Material Contract by the Borrower or any of its
Subsidiaries party thereto and, to the best knowledge of each Loan Party, there
exists no default under any Material Contract by any other party thereto.
SECTION 4.24 Investments.
-----------
Set forth on Schedule 4.24 is a complete and accurate list of all
-------------
Investments in excess of $500,000 held by any Loan Party showing as of the date
hereof the amount, obligor or issuer and maturity, if any, thereof.
SECTION 4.25 Intellectual Property.
---------------------
Set forth on Schedule 4.25 is a complete and accurate list of all patents,
-------------
trademarks, trade names, service marks and copyrights, and all applications
therefor and licenses thereof, of each Loan Party, showing as of the date hereof
the jurisdiction in which registered, the registration number, the date of
registration and the expiration date. Each Loan Party owns or has rights to use
all patents, trademarks, trade names, service marks, copyrights and other
intellectual property necessary to conduct its business as now or heretofore
conducted by it or proposed to be conducted by it. Each Loan Party conducts its
business and affairs without infringement of or interference with any patent,
trademark, trade name, service xxxx, copyright or other intellectual property of
any other Person.
SECTION 4.26 Acquisition Documents
---------------------
(a) Each Acquisition Document to which the Borrower or any of its
Subsidiaries is a party has been duly executed and delivered by the Borrower or
such Subsidiary, as the case may be, and, to the best knowledge of the Borrower,
each Acquisition Document has been duly executed and delivered by the parties
thereto other than the Borrower and its Subsidiaries and is in full force and
effect. The representations and warranties of the Borrower
61
and each of its Subsidiaries contained in each Acquisition Document to which the
Borrower or such Subsidiary, as the case may be, is a party are true and correct
in all material respects on the date hereof and will be true and correct in all
material respects on the Closing Date and the Acquisition Date, as if made on
each of such dates, and the Administrative Agent and each Lender shall be
entitled to rely upon such representations and warranties with the same force
and effect as if they were incorporated in this Agreement and made to the
Administrative Agent and each Lender directly as of the date hereof and the
Closing Date.
(b) True and correct copies of each of the Acquisition Documents have
been delivered to the Administrative Agent, and as of the Closing Date, the
Acquisition shall have been consummated in accordance therewith, and no party
thereto shall have waived any material term or condition contained therein.
Effective upon consummation of the Acquisition, the Borrower shall have acquired
good, legal and marketable title to all of the issued and outstanding shares of
capital stock of X.X. Xxxxxxx (Holdings) plc.
SECTION 4.27 Fees.
----
No broker's or finder's fees or commissions or any similar fees or
commissions will be payable by the Borrower or any Subsidiary with respect to
the incurrence and maintenance of the Obligations, any other transaction
contemplated by the Loan Documents or the Acquisition Documents or any services
rendered in connection with any such transactions. The Borrower hereby
covenants and agrees to indemnify the Administrative Agent and each Lender
against and hold the Administrative Agent and each Lender harmless from any
claim, demand or liability for broker's or finder's fees or similar fees or
commissions incurred or alleged to have been incurred in connection with any of
the transactions contemplated hereby or by the Acquisition Documents.
SECTION 4.28 Government Consents for Conduct of Business.
-------------------------------------------
(a) Except as set forth on Schedule 4.04, each Loan Party has, and is
-------------
in good standing with respect to, all approvals, permits, licenses, consents,
authorizations, franchises, certificates, and inspections of all Regulatory
Agencies and are otherwise necessary for a Loan Party to continue to conduct
business and own, use, operate, and maintain its property and assets as
heretofore conducted, owned, used, operated, and maintained which, if not
obtained (whether directly or by lawful and effective assignment) or not
maintained in good standing, would have a Material Adverse Effect. No such
approval, permit, license, consent, authorization, franchise, or certificate is
conditioned or limited any more so than as is generally the case with respect to
Persons engaged in the same or similar lines of business. Each such approval,
permit, license, consent, authorization, franchise, or certificate was duly and
validly granted or issued, is in full force and effect, and neither has been,
nor has been threatened to be, amended, modified, suspended, rescinded, revoked,
forfeited, or assigned. Further, no condition(s) exist(s) or event(s) has
(have) occurred that, with the giving of notice or lapse of time or both, could
result in the amendment, modification, suspension, rescission, revocation,
forfeiture, or non-renewal of any such approval, permit, license, consent,
authorization, franchise, or certificate.
62
SECTION 4.29 Assets of Borrower.
------------------
On the date of this Agreement, the assets (excluding intercompany
receivables) shown in the unaudited financial statements for the fiscal quarter
ended March 31, 1998, which are assets (excluding intercompany receivables) of
the Borrower itself on an unconsolidated basis are at least $44,594,564.00.
63
ARTICLE V
REPORTING REQUIREMENTS
While any of the Commitments is outstanding, and, in the event any
Advance remains outstanding, so long as the Borrower or any other Loan Party is
indebted to the Lenders or the Administrative Agent under any of the Loan
Documents, any Letter of Credit is outstanding and until payment in full of the
Notes and full and complete performance of all of its other obligations arising
hereunder, the Borrower shall furnish to the Administrative Agent and Lenders:
SECTION 5.01 Default Notice.
--------------
As soon as possible and in any event within two (2) Business Days after
obtaining knowledge of the occurrence of any Default or any event, development
or occurrence reasonably likely to have a Material Adverse Effect, a statement
of the chief financial officer of the Borrower setting forth details of such
Default or event, development or occurrence and the action that the Borrower has
taken and proposes to take with respect thereto.
SECTION 5.02 Annual Financials.
-----------------
As soon as available and in any event within ninety (90) days after the end
of each Fiscal Year:
(a) a copy of the annual audit report for such year for the Borrower
and its Subsidiaries, including therein a Consolidated balance sheet of the
Borrower and its Subsidiaries and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries, for
such Fiscal Year, in each case setting forth in comparative form the
corresponding figures for the prior Fiscal Year and the corresponding figures
from the budget for such Fiscal Year and in each case accompanied by an opinion
acceptable to the Administrative Agent of Xxxxx Xxxxxxxx LLP or other
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent, together with (i) a letter of such
accounting firm to the Administrative Agent and Lenders stating that in the
course of the regular audit of the business of the Borrower and its
Subsidiaries, which audit was conducted by such accounting firm in accordance
with generally accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if, in the opinion
of such accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the covenants
contained in Section 6.18, provided, that in the event of any change in GAAP
---------
used in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section 6.18, a
statement of reconciliation conforming such financial statements to GAAP and (c)
a certificate of the chief financial officer of the Borrower stating that no
Default has occurred and is continuing or, if a
64
Default has occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with respect
thereto; and
(b) a copy of the consolidating balance sheets of the Borrower and its
Subsidiaries, as of the end of such Fiscal Year and consolidating statements of
income and consolidating statements of cash flows of the Borrower and its
Subsidiaries, for such Fiscal Year, each certified as being true and correct by
the chief financial officer of the Borrower.
SECTION 5.03 Quarterly Financials.
--------------------
As soon as available and in any event within forty-five (45) days after the
end of each of the first three fiscal quarters of each Fiscal Year:
(a) a Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries for
the period commencing at the end of the previous fiscal quarter and ending with
the end of such fiscal quarter; and
(b) a Consolidated statement of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries for the period commencing at the
end of the previous Fiscal Year and ending with the end of such fiscal quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding Fiscal Year and the corresponding figures
from the budgets for such period and for the Fiscal Year which includes such
period,
all of the foregoing to be in reasonable detail and duly certified by the chief
financial officer of the Borrower as having been prepared in accordance with
GAAP (subject to normal year-end audit adjustments), together with (i) a
Compliance Certificate of said officer stating, inter alia, that no Default has
----- ----
occurred and is continuing or, if a Default has occurred and is continuing, a
statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto, and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
Borrower in determining compliance with the financial covenants contained in
Section 6.18, provided, that (subject to the provisions of Section 1.03 hereof)
---------
in the event of any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination
of compliance with Section 6.18, a statement of reconciliation conforming such
financial statements to GAAP, and (iii) a schedule in form satisfactory to the
Administrative Agent listing the Investments and amount and form of invested
equity capital of the Borrower and its Subsidiaries in each Subsidiary of the
Borrower or of any Subsidiary; provided, further, that to the extent that
-------- -------
comparable information is set forth in the Borrower's quarterly report on Form
10-Q filed with the Securities and Exchange Commission for each such quarter,
delivery to the Administrative Agent and the Lenders of such 10-Q within the
time period specified above shall be acceptable for purposes of this Section
5.03.
SECTION 5.04 Intentionally omitted.
65
SECTION 5.05 Annual Budgets.
--------------
As soon as available and in any event no later than forty-five (45) days
after the end of each Fiscal Year, an annual operating budget prepared by
management of the Borrower, in form reasonably satisfactory to the
Administrative Agent, including projected consolidated and consolidating balance
sheets, income statements and cash flow statements on a quarterly basis for the
Fiscal Year following such Fiscal Year then ended.
SECTION 5.06 ERISA Events and ERISA Reports.
------------------------------
(a) Promptly and in any event within twenty (20) days after any Loan
Party or any ERISA Affiliate knows or has reason to know that any ERISA Event
has occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, that such Loan Party or such
ERISA Affiliate has taken and proposes to take with respect thereto and (b) on
the date any records, documents or other information must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy of such
records, documents and information.
SECTION 5.07 Plan Terminations.
-----------------
Promptly and in any event within five (5) Business Days after receipt
thereof by any Loan Party or any ERISA Affiliate, copies of each notice from the
PBGC stating its intention to terminate any Plan or to have a trustee appointed
to administer any Plan or correspondence from the PBGC indicating it is
considering termination of any Plan.
SECTION 5.08 Actuarial Reports
-----------------
Promptly upon receipt thereof by any Loan Party or any ERISA Affiliate, a
copy of the annual actuarial valuation report for each Plan the funded current
liability percentage (as defined in Section 302(d)(8)(B) of ERISA) of which is
less than 90% or the unfunded current liability (as defined in Section
302(d)(8)(A) of ERISA) of which exceeds $500,000. The present value of benefit
liabilities as of the latest actuarial valuation date for such Plan (but not
prior to 12 months prior to the date hereof), determined on the basis of a shut
down of the company in accordance with actuarial assumptions used by the PBGC in
single-employer plan terminations, shall not exceed the market value of assets
exclusive of any contributions due to the Plan by more than $50,000.
SECTION 5.09 Plan Annual Reports.
-------------------
Upon the request, from time to time, of the Administrative Agent, promptly
and in any event within thirty (30) days after the filing thereof with the
Internal Revenue Service, copies of each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) with respect to each Plan.
66
SECTION 5.10 Annual Plan Summaries. As soon as available and in any
---------------------
event within one hundred and five (105) days after the end of each Fiscal Year,
an annual summary of actuarial valuation and other information with respect to
each Plan in form, substance and detail satisfactory to the Administrative
Agent.
SECTION 5.11 Multiemployer Plan Notices.
--------------------------
Promptly and in any event within five (5) Business Days after receipt
thereof by any Loan Party or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, copies of each notice concerning, or other correspondence
with respect to, (a) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (b) the reorganization or termination, within the meaning of
Title IV of ERISA, of any such Multiemployer Plan or (c) the amount of liability
incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (a) or (b).
SECTION 5.12 Litigation.
----------
Promptly after the commencement thereof, notice of all material actions,
suits, investigations, litigation and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
Federal, state, local or foreign, affecting any Loan Party and, promptly after
the occurrence thereof, notice of any material adverse change in the status or
the financial effect on any Loan Party of the Disclosed Litigation from that
described on Schedule 4.09.
-------------
SECTION 5.13 Securities Reports.
------------------
Promptly after the sending or filing thereof, copies of all proxy
statements, financial statements and reports that any Loan Party sends to its
Equityholders, and copies of all regular, periodic and special reports, and all
registration statements, that any Loan Party files with the Securities and
Exchange Commission or any other governmental authority, or with any national
securities exchange.
SECTION 5.14 Creditor Reports.
----------------
Promptly after the furnishing thereof, copies of any statement or report
furnished to any other holder of the securities of any Loan Party pursuant to
the terms of any indenture, loan or credit agreement or similar agreement or
instrument and not otherwise required to be furnished to the Lenders pursuant to
any other clause of this Article V.
SECTION 5.15 Agreement Notices.
-----------------
Promptly upon receipt thereof, copies of all notices, requests and other
documents received by any Loan Party under or pursuant to any Acquisition
Document or Material Contract or indenture, loan or credit agreement or similar
agreement or instrument regarding or related to any breach or default by any
party thereto or any event that could materially impair the value of the
67
interests or the rights of any Loan Party or otherwise have a Material Adverse
Effect and copies of any amendment, modification or waiver of any provision of
any Acquisition Document or Material Contract or indenture, loan or credit
agreement or similar agreement or indenture and, from time to time upon request
by the Administrative Agent, such information and reports regarding the
foregoing as the Administrative Agent may reasonably request.
SECTION 5.16 Revenue Agent Reports.
---------------------
Within ten (10) days after receipt, copies of all Revenue Agent Reports
(Internal Revenue Service Form 886), or other written proposals of the Internal
Revenue Service, that propose, determine or otherwise set forth any adjustments
to the Federal income tax liability of the affiliated group (within the meaning
of Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member aggregating $250,000 or more.
SECTION 5.17 Environmental Conditions.
------------------------
Promptly after the assertion or occurrence thereof, notice of any
Environmental Action against or of any noncompliance by any Loan Party with any
Environmental Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect.
SECTION 5.18 Real Property.
-------------
Upon the request, from time to time, of the Administrative Agent, promptly
and in any event within thirty (30) days after any such request, a report
supplementing Schedules 4.21, 4.21(A) and 4.22 hereto, including an
----------------------- ----
identification of all real and leased property disposed of by the Borrower or
any of its Subsidiaries during such Fiscal Year, a list and description
(including the street address, county or other relevant jurisdiction, state,
record owner and, in the case of leases of property, lessor, lessee, expiration
date and annual rental cost thereof) of all real property acquired or leased
during such Fiscal Year and a description of such other changes in the
information included in such Schedules as may be necessary for such Schedules to
remain accurate and complete in all respects.
SECTION 5.19 Insurance.
---------
As soon as available and in any event within thirty (30) days after the end
of each Fiscal Year, a report summarizing the insurance coverage (specifying
type, amount and carrier) in effect for each Loan Party and containing such
additional information as the Administrative Agent may reasonably request.
SECTION 5.20 Management Letters.
------------------
As soon as available and in any event within five (5) Business Days after
the receipt thereof, copies of any "management letter" or similar letter
received by the Borrower or its Board of Directors (or any Committee thereof)
from its independent public accountants.
68
SECTION 5.21 Egerton Consideration Documents.
-------------------------------
(a) Promptly, and in any event within five (5) Business Days after
receipt or delivery thereof, Borrower shall deliver to the Administrative Agent
copies of any notices, certificates, requests, correspondences or other
documents received by the Borrower from any Vendor or NatWest, or delivered by
the Borrower to any Vendor or NatWest, under or pursuant to, or relating to or
concerning any matter under, any of the Egerton Consideration Documents, and
from time to time upon request by the Administrative Agent, such information,
documents and reports regarding the foregoing as the Administrative Agent may
reasonably request.
(b) Upon request by the Administrative Agent, and in any event within
five (5) days after any such request, the Borrower shall deliver to the
Administrative Agent a copy of the Egerton Registers, together with a
certificate of the chief financial officer of the Borrower certifying that such
Egerton Registers are true and complete copies thereof.
SECTION 5.22 Other Information.
-----------------
Such other information respecting the business, condition (financial or
otherwise), operations, performance, properties or prospects of any Loan Party
or any of its Subsidiaries or the Collateral as the Administrative Agent or any
Lender (through the Administrative Agent) may from time to time reasonably
request.
69
ARTICLE VI
AFFIRMATIVE AND FINANCIAL COVENANTS
While any of the Commitments is outstanding, and, in the event any Advance
remains outstanding, so long as the Borrower or any other Loan Party is indebted
to the Lenders or the Administrative Agent under any of the Loan Documents, any
Letter of Credit is outstanding and until payment in full of the Notes and full
and complete performance of all of its other obligations arising hereunder, the
Borrower shall:
SECTION 6.01 Compliance with Law.
-------------------
Comply, and cause each of its Subsidiaries to comply, in all material
respects, with all applicable laws, rules, regulations and orders, such
compliance to include, without limitation, compliance with ERISA.
SECTION 6.02 Payment of Taxes, Etc.
---------------------
Timely pay and discharge, and cause each of its Subsidiaries to timely pay
and discharge, (a) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (b) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided, however, that the
-------- -------
Borrower and its Subsidiaries shall not be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being maintained,
unless and until any Lien resulting therefrom attaches to its property and
becomes enforceable against the Borrower or any of its Subsidiaries; and,
provided, further, that, if such Lien, individually and in the aggregate with
-------- -------
all such other Liens, does not secure more than $250,000 of taxes, assessments,
charges and claims, such Lien may be paid within three (3) Business Days after
the Borrower or such Subsidiary, as the case may be, obtains knowledge thereof.
SECTION 6.03 Compliance with Environmental Laws.
----------------------------------
Comply, and cause each of its Subsidiaries and all lessees and other
Persons operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental Permits;
obtain and renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits reasonably necessary for its operations and properties;
and conduct, and cause each of its Subsidiaries to conduct, any investigation,
study, sampling and testing, and undertake any cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials from any
of its properties, in accordance with the requirements of all Environmental
Laws; provided, however, that the Borrower and its Subsidiaries shall not be
-------- -------
required to undertake any such cleanup, Removal, Remedial or Response action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and adequate reserves as determined by the Administrative
Agent are being maintained with respect to such circumstances.
70
SECTION 6.04 Preparation of Environmental Reports.
------------------------------------
At any time after the occurrence of a Default or upon receipt by Borrower
or any of its Subsidiaries of any notice of any Environmental Action (x) against
or of any noncompliance by any Loan Party with any Environmental Law or
Environmental Permit or (y) with respect to any property of the Borrower or any
of its Subsidiaries, permit the Administrative Agent, upon reasonable prior
notice from the Administrative Agent to the Borrower, from time to time in its
reasonable discretion but only in the event that the Administrative Agent has
any reasonable basis for concern regarding compliance with Environmental Laws or
Hazardous Materials rules or regulations, to retain, at the Borrower's expense,
an independent professional consultant to prepare environmental site assessment
reports for the Borrower or any of its Subsidiaries and/or to review any report
relating to Hazardous Materials prepared by or for the Borrower and, upon a
reasonable belief that the Borrower or any of its Subsidiaries has breached any
covenant or representation with respect to environmental matters or that there
has been a material violation of Environmental Laws by the Borrower or one of
its Subsidiaries, the Administrative Agent may conduct its own investigation of
such matter at any facility or property currently owned, leased, operated or
used by the Borrower or one of its Subsidiaries and the Borrower agrees to use
its best efforts to obtain permission for the Administrative Agent's
professional consultant to conduct its own investigation of any such matter at
any facility or property previously owned, leased, operated or used by the
Borrower or one of its Subsidiaries. The Borrower and its Subsidiaries hereby
grant to the Administrative Agent, its employees, consultants and contractors,
the right to enter into or onto the facilities or properties currently owned,
leased, operated or used by the Borrower or its Subsidiaries upon reasonable
notice to the Borrower to perform such assessments on such property as are
necessary to conduct such a review and/or investigation. Any such investigation
of any such facility or property shall be conducted, unless otherwise agreed to
by the Borrower and the Administrative Agent, during normal business hours and,
to the extent reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at any facility or property or to cause any damage
or loss to any facility or property. The Borrower and the Administrative Agent
hereby acknowledge and agree that any report of any investigation conducted at
the request of the Administrative Agent will be obtained and shall be used by
the Administrative Agent and Lenders for the purpose of internal credit
decisions to monitor and police the Advances and/or protect the Administrative
Agent's and Lenders' security interests in the Collateral. The Administrative
Agent agrees to deliver a copy of any such report to the Borrower with the
understanding that the Borrower acknowledges and agrees that (a) the Borrower
will indemnify and hold harmless the Administrative Agent and each Lender from
any costs, losses or liabilities relating to the Borrower's use of or reliance
on such report and (b) neither the Administrative Agent nor any Lender makes any
representation or warranty with respect to such report.
SECTION 6.05 Maintenance of Insurance.
------------------------
(a) Maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates including,
71
without limitation, the policies described on Schedule 6.05 hereto (or other
-------------
policies comparable thereto); and (b) file with the Administrative Agent upon
its request a detailed list of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby; and (c)
deliver to the Administrative Agent, in form and substance reasonably
satisfactory to the Administrative Agent, endorsements to (A) all "all-risk" and
casualty and (if any) business interruption insurance naming the Administrative
Agent, on behalf of itself and the Lenders, as loss payee if permitted
thereunder (or assignee, in the case of business interruption insurance, if any)
insuring in the case of "all-risk" against loss or damage by fire, lightening,
windstorm, explosion, hail, tornado, and if to the extent in a flood hazard
area, a flood insurance policy, and (B) all general liability and other
liability policies naming the Administrative Agent, on behalf of itself and the
Lenders, as additional insured if permitted thereunder, and providing, in any
event, that such insurance policies shall not be canceled without 30 days' prior
written notice thereof by the respective insurer to the Administrative Agent and
shall contain standard non-contributory mortgagee clause endorsement in favor of
the Administrative Agent with respect to hazard insurance coverage.
SECTION 6.06 Preservation of Corporate Existence, Etc.
----------------------------------------
Preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises.
SECTION 6.07 Visitation Rights.
-----------------
(a) At any reasonable time and from time to time, upon reasonable
notice, permit the Administrative Agent or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of the Borrower and its Subsidiaries to
discuss the affairs, finances and accounts of the Borrower and any such
Subsidiaries with any of their chief executive officer, chief operating officer,
chief financial officer or directors.
(b) In the case of the Borrower, meet at least once each calendar year
(and more frequently if the Administrative Agent so requests) with
representatives of the Administrative Agent and the Lenders to discuss the
affairs, finances and accounts of the Borrower and the Subsidiaries.
(c) From and after the date of occurrence of any Default, permit the
Administrative Agent, on behalf of the Lenders (and at the Borrower's expense),
to conduct (or cause to be conducted by any Person reasonably selected by the
Administrative Agent) such collateral audits and/or commercial finance
examinations of the Borrower and its Subsidiaries during each calendar year as
the Administrative Agent may reasonably request, in accordance with the
Administrative Agent's instructions and protocol.
72
SECTION 6.08 Keeping of Books.
----------------
Keep, and cause each of its Subsidiaries to keep, proper books of record
and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each such
Subsidiary in accordance with GAAP.
SECTION 6.09 Maintenance of Properties, Etc.
------------------------------
Maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties that are reasonably necessary in the conduct of
its business in good working order and condition, ordinary wear and tear
excepted.
SECTION 6.10 Compliance with Terms of Leaseholds.
-----------------------------------
Make all payments and otherwise perform all obligations in respect of all
leases of real property to which the Borrower or any of its Subsidiaries is a
party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or
canceled, notify the Administrative Agent of any default by any party with
respect to such leases and cooperate with the Administrative Agent in all
respects to cure any such default, and cause each of its Subsidiaries to do so
except, in any case, where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.11 Performance of Material Contracts.
---------------------------------
Perform and observe, and cause each of its Subsidiaries to perform and
observe, all of the terms and provisions of each Material Contract to be
performed or observed by it, maintain, and cause each of its Subsidiaries to
maintain, each such Material Contract in full force and effect, and enforce, and
cause each of its Subsidiaries to enforce, each such Material Contract in
accordance with its terms.
SECTION 6.12 Intentionally omitted.
SECTION 6.13 Agreement to Grant Additional Security.
--------------------------------------
(a) Promptly, and in any event within thirty (30) days after the
acquisition of assets of the type that would have constituted Collateral at the
date hereof and investments of the type that would have constituted Collateral
on the date hereof (other than assets with a fair market value of less than
$50,000), notify the Administrative Agent of the acquisition of such assets or
investments and, to the extent not already Collateral in which the
Administrative Agent has a perfected security interest pursuant to the
Collateral Documents, such assets and investments if owned by the Borrower or a
Domestic Subsidiary or, if no significant adverse tax consequences would be
incurred by the Borrower, a Foreign Subsidiary will become additional Collateral
hereunder to the extent the Administrative Agent deems the pledge of such assets
practicable (the "Additional Collateral"), and the Borrower will, and will
----------------------
cause each of such Subsidiary to, take
73
all necessary action, including the filing of appropriate financing statements
under the provisions of the UCC, applicable foreign, domestic or local laws,
rules or regulations in each of the offices where such filing is necessary or
appropriate to grant the Administrative Agent a perfected Lien in such
Collateral pursuant to and to the full extent required by the Collateral
Documents and this Agreement.
(b) Promptly, and in any event no later than thirty (30) days after a
request with respect thereto, cause each of the Borrower's Domestic Subsidiaries
(which are not already a party thereto) as the Administrative Agent shall
request to become party to, or to execute and deliver, a Guaranty guarantying to
the Administrative Agent and the Lenders the prompt payment, when and as due, of
all Obligations of the Loan Parties under the Loan Documents, including all
obligations under any Hedge Agreements or other hedging agreements, each such
Guaranty to be in form and substance satisfactory to the Administrative Agent.
(c) Promptly pledge to the Administrative Agent, for the ratable
benefit of the Lenders and pursuant to the Pledge Agreement (or another pledge
or security agreement in form and substance satisfactory to the Administrative
Agent), not less than 65% of the Equity Interests of each of the Borrower's
Foreign Subsidiaries which shall become a Subsidiary after the date hereof,
unless no significant adverse tax consequences would be incurred by the Borrower
if up to any greater percentage were to be pledged.
(d) Promptly, and in any event no later than thirty (30) days after a
request with respect thereto, cause each Guarantor created or established after
the date hereof to grant to the Administrative Agent, for the ratable benefit of
the Lenders, a first priority Lien on all property (tangible and intangible) of
such Guarantor upon terms similar to those set forth in the Collateral Documents
and otherwise satisfactory in form and substance to Administrative Agent. The
Borrowers shall cause each Guarantor, at its own expense, to become a party to a
Security Agreement, an Intellectual Property Security Agreement, a Mortgage and
any other Collateral Document and to execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by Administrative Agent to be necessary or desirable for the
creation and perfection of the foregoing Liens (including legal opinion, title
insurance, consents, corporate documents and any additional or substitute
security agreements or mortgages or deeds of trust). The Borrowers will cause
each such Guarantor to take all actions requested by Administrative Agent
(including, without limitation, the filing of UCC-1's) in connection with the
granting of such security interests.
(e) Promptly, and in any event not later than thirty (30) days after a
request with respect thereto, (i) deliver to the Administrative Agent the
original of all instruments, documents and chattel paper, and all other
Collateral of which the Administrative Agent determines it should have physical
possession in order to perfect and protect its security interest therein, duly
pledged, endorsed or assigned to the Administrative Agent without restriction;
(ii) obtain landlord waivers, in form and substance satisfactory to the
Administrative Agent, with respect to any inventory or other Collateral located
at a location that is not owned by a Borrower or a Subsidiary; (iii) deliver to
the Administrative Agent warehouse receipts covering any portion
74
of the inventory or other Collateral located in warehouses and for which
warehouse receipts are issued; (iv) when an Event of Default exists, transfer
inventory to locations designated by the Administrative Agent; (v) if any
Collateral is at any time in the possession or control of any warehousemen,
bailee or any Borrower's agents or processors, notify the Administrative Agent
thereof and notify such person of the Administrative Agent's security interest
in such Collateral and obtain a landlord waiver or bailee letter, in form and
substance satisfactory to the Administrative Agent, from such person and
instruct such person to hold all such Collateral for the Administrative Agent's
account subject to the Administrative Agent's instructions; (vi) if at any time
any inventory or other Collateral is located on any real property of a Borrower
which is subject to a mortgage or other Lien, obtain a mortgagee waiver, in form
and substance satisfactory to the Administrative Agent, from the holder of each
mortgage or other Lien on such real property; and (vii) take all such other
actions and obtain all such other agreements as the Administrative Agent may
reasonably deem necessary or desirable in respect of any Collateral.
(f) The security interests required to be granted pursuant to this
Section shall be granted pursuant to the Collateral Documents or, in the
Administrative Agent's discretion, such other security documentation (which
shall be substantially similar to the Collateral Documents already executed and
delivered by the Borrower and any Subsidiary) as is satisfactory in form and
substance to the Administrative Agent (the "Additional Collateral Documents")
-------------------------------
and shall constitute valid and enforceable perfected security interests prior to
the rights of all third Persons and subject to no other Liens except Liens
permitted under Section 7.01. The Additional Collateral Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Administrative Agent, for the
benefit of the Lenders, granted pursuant to the Additional Collateral Documents
and, all taxes, fees and other charges payable in connection therewith shall be
paid in full by the Borrower. At the time of the execution and delivery of
Additional Collateral Documents, the Borrower shall cause to be delivered to the
Administrative Agent such agreements, opinions of counsel, and other related
documents as may be reasonably requested by the Administrative Agent or the
Required Lenders to assure themselves that this Section has been complied with.
SECTION 6.14 Interest Rate Protection.
------------------------
The Borrower shall not be required to, but may obtain one or more interest
rate Hedge Agreements with a Lender or Lenders, the terms and other provisions
of all such Hedge Agreements to be subject to the prior written consent of the
Administrative Agent, such consent not to be unreasonably withheld.
SECTION 6.15 Performance of Acquisition Documents.
------------------------------------
Perform and observe, or cause the relevant Subsidiary to perform and
observe, all of the terms and provisions of each Acquisition Document to be
performed or observed by it or such Subsidiary, maintain each such Acquisition
Document in full force and effect, enforce each such Acquisition Document in
accordance with its terms, take all such action to such end as may be from time
to time requested by the Administrative Agent and, upon request of the
Administrative
75
Agent, make to each other party to each such Acquisition Document such demands
and requests for action or for information and reports as the Borrower or any
Subsidiary is entitled to make under such Acquisition Document.
SECTION 6.16 Consummation of Acquisition.
---------------------------
Cause the Acquisition to be consummated on or prior to the Closing Date in
accordance with the terms and conditions of the Acquisition Documents.
SECTION 6.17 Intentionally omitted.
SECTION 6.18. Financial Covenants.
-------------------
With respect to the Borrower and its Subsidiaries on a Consolidated basis:
(a) Minimum Net Worth. Maintain, as of the last day of each fiscal
-----------------
quarter, an excess of Consolidated total assets over Consolidated total
liabilities of the Borrower and its Subsidiaries of not less than the sum of (i)
Forty Million Dollars $40,000,000 plus (ii) 75% of positive Consolidated Net
----
Income (and excluding 100% of Consolidated net losses) of the Borrower and its
Subsidiaries since the Closing Date to and including each date of determination
computed on a cumulative basis for said entire period, plus (iii) 100% of the
----
Net Cash Proceeds received by the Borrower from any Equity Offering.
(b) Total Consolidated Debt to EBITDA. Maintain as of the end of each
---------------------------------
fiscal quarter of the Borrower a ratio of (i) Total Consolidated Debt (other
than trade credit, accrued expenses and income taxes payable) to (ii) EBITDA for
the most recently completed four fiscal quarters of the Borrower of not more
than the following: 2.00:1.00 during the period from the date of this Agreement
to and including December 31, 1999; and 1.50:1.00 from January 1, 2000 and at
all times thereafter.
(c) Fixed Charge Coverage Ratio. Maintain as of the end of each
---------------------------
fiscal quarter of the Borrower a Fixed Charge Coverage Ratio for the most
recently completed four fiscal quarters of the Borrower of not less than the
following ratios for the requisite periods set forth below:
Four Fiscal
Quarters Ending In: Not less than:
1998 2.00:1.00
1999 2.25:1.00
2000 3.00:1.00
For purposes of this Section 6.18(c) "Fixed Charge Coverage Ratio" shall mean,
the ratio of (i) EBITDA for the most recently completed four fiscal quarters of
the Borrower less the sum of (A) Capital Expenditures made in cash during such
----
period, and (B) the aggregate amount of federal,
76
state, local and foreign taxes paid in cash by the Borrower and its Subsidiaries
during such period, to (ii) Consolidated cash Interest Expense payable by the
Borrower and its Subsidiaries on all Debt during such period, plus principal
----
amounts of all Debt (excluding principal payments under the Loan Documents)
payable by the Borrower and its Subsidiaries during such period.
(d) Minimum Consolidated Interest Coverage Ratio. Maintain as of the
--------------------------------------------
end of each fiscal quarter of the Borrower a ratio of (i) EBITDA for the most
recently completed four fiscal quarters of the Borrower to (ii) Consolidated
Interest Expense for such period of not less than 5.0:1.00.
77
ARTICLE VII
NEGATIVE COVENANTS
While any of the Commitments is outstanding, and, in the event any Advance
remains outstanding, so long as the Borrower or any other Loan Party is indebted
to the Lenders or the Administrative Agent under any of the Loan Documents, any
Letter of Credit is outstanding and until payment in full of the Notes and full
and complete performance of all of its other obligations arising hereunder, the
Borrower will not, at any time, without the prior consent of the Required
Lenders:
SECTION 7.01 Liens, Etc.
----------
Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with
respect to any of its properties of any character, whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code or any other statute of any domestic or foreign jurisdiction, a financing
statement or comparable instruments that names the Borrower or any of its
Subsidiaries as debtor, or sign or suffer to exist, or permit any of its
Subsidiaries to sign or suffer to exist, any security agreement or comparable
instruments authorizing any secured party thereunder to file any such financing
statement, or assign, or permit any of its Subsidiaries to assign, any accounts
or other right to receive income, excluding, however, from the operation of the
--------- -------
foregoing restrictions the following:
(a) Liens created under the Loan Documents;
(b) Permitted Liens;
(c) Liens existing on the date hereof and described on Schedule 7.01,
-------------
and including the liens which may be granted by the Borrower to NatWest in cash
collateral in an amount not exceeding NatWest's maximum contingent liability in
respect of the Egerton Guarantee Instruments;
(d) Purchase money Liens upon real property or equipment acquired or
held by the Borrower or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such real property or equipment or to
secure Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of any such real property or equipment to be subject
to such Liens, or Liens existing on any such real property or equipment at the
time of acquisition (other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount; provided,
--------
however, that no such Lien shall extend to or cover any property other than the
-------
real property or equipment being acquired, constructed or improved, and no such
extension, renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced; and,
provided, further,
-------- -------
78
that the aggregate principal amount of the Debt secured by Liens permitted by
this clause (d) shall not exceed (i) $5,000,000 in respect of the Debt secured
by a mortgage to be placed after the date hereof on the California R&D Property;
and (ii) $250,000 in respect of all other such Debt at any time outstanding;
and, provided, further, that any such Debt shall not otherwise be prohibited by
-------- -------
the terms of the Loan Documents;
(e) Liens arising in connection with Capitalized Leases permitted
under Section 7.02; provided, that no such Lien shall extend to or cover any
--------
Collateral or any assets other than the assets subject to such Capitalized
Leases; and
(f) the replacement, extension or renewal of any Lien permitted by
clauses (c) through (e) above upon or in the same property theretofore subject
thereto in connection with the replacement, extension or renewal (without
increase in the amount or any change in any direct or contingent obligor) of the
Debt secured thereby.
SECTION 7.02 Debt.
----
Create, incur, assume or suffer to exist, or permit any of its Subsidiaries
to create, incur, assume or suffer to exist, any Debt other than:
(a) In the case of the Borrower, Debt incurred pursuant to the Loan
Documents;
(b) In the case of any of the Wholly-Owned Subsidiaries of the
Borrower, intercompany Debt owed to the Borrower or to a Wholly-Owned Subsidiary
of the Borrower; provided, that, there are no restrictions whatsoever on the
--------- ----
ability of the Subsidiary to repay such Debt; and subject, in any event, to the
limitations on Investments in Subsidiaries of the Borrower or of any Subsidiary
of the Borrower set forth in Section 7.06(a) hereof;
(c) In the case of the Borrower and any of its Subsidiaries:
(i) Debt secured by Liens permitted by Section 7.01(d) not to
exceed in the aggregate $250,000 at any time outstanding in respect of the
Borrower and all of its Subsidiaries;
(ii) Capitalized Leases not to exceed in the aggregate $4,500,000
at any time outstanding in respect of the Borrower and all of its Subsidiaries;
(iii) the Surviving Debt; and any Debt extending the maturity
of, or refunding or refinancing, in whole or in part, such Surviving Debt;
provided, that the terms of any such extending, refunding or refinancing Debt,
---------
and of any agreement entered into and of any instrument issued in connection
therewith, are consented to in writing by the Administrative Agent, with the
approval of the Required Lenders, and otherwise permitted by this Agreement and
the other Loan Documents; and, provided, further, that the principal amount of
-------- -------
such Surviving Debt shall not be increased above the principal amount thereof
permitted to be
79
outstanding after the Initial Extension of Credit, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection with
such extension, refunding or refi nancing; and
(iv) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) In the case of the Borrower, unsecured Debt incurred in the
ordinary course of business for the deferred purchase price of property or
services, maturing within one year from the date created, and aggregating, on a
Consolidated basis, not more than $250,000 at any one time outstanding; and
(e) In the case of the Borrower, Debt incurred pursuant to the Egerton
Consideration Documents.
SECTION 7.03 Lease Obligations.
-----------------
Create, incur, assume or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any obligations as
lessee for the rental or hire of real or personal property in connection with
any sale and leaseback transaction, except for the Orpington Sale/Leaseback but
only to the extent permitted in Section 7.05.
SECTION 7.04 Fundamental Changes.
-------------------
(a) Merge into or consolidate with any Person or permit any Person to
merge into it, or permit any of its Subsidiaries to do so, or acquire or permit
any Subsidiary to acquire all or any substantial part of the assets or any of
the capital stock of any other Person; provided, however, (1) that the Borrower
-------- -------
may consummate the Acquisition in accordance with the terms of the Acquisition
Documents and except that, so long as no Default or Event of Default exists or
would exist after giving effect thereto, the Borrower or a Subsidiary may
acquire all or a substantial part of the assets of another Person engaged in the
same business as the Borrower (so as not to violate the terms of Section 7.08
hereof) if (i) the aggregate consideration therefor (including assumption of
permitted debt and other liabilities) does not exceed $1,000,000 with respect to
any individual acquisition, or $2,000,000 in the aggregate in any fiscal year;
(ii) the assumption of any contingent liabilities or obligations (tax,
litigation, environmental, pension or otherwise) shall have been approved in
advance in writing by the Administrative Agent, and (iii) the Administrative
Agent shall have received copies of such agreements, instruments and documents
as it shall have reasonably requested prior to consummation thereof in
sufficient time for review; and (2) that any Subsidiary of the Borrower may
merge or consolidate with and into any other Subsidiary of the Borrower.
(b) Liquidate, wind-up or dissolve itself (or suffer any liquidation
or dissolution), convey, sell, assign, lease, transfer or otherwise dispose of
(or agree to do any of the foregoing at any future time) all or substantially
all of its property, business or assets, or permit any of its Subsidiaries to do
any of the foregoing.
80
SECTION 7.05 Sales, Etc. of Assets.
---------------------
Sell, lease, transfer or otherwise dispose of, or permit any of its
Subsidiaries to sell, lease, transfer or otherwise dispose of, any assets or
grant any option or other right to purchase, lease or otherwise acquire any
assets, except:
(a) Sales of inventory in the ordinary course of business;
(b) Sales of obsolete equipment in the ordinary course of business;
(c) The sale of any fixed asset by the Borrower or any of its
Subsidiaries (i.e., not including in any event a sale of inventory or a sale of
----
receivables or a sale of capital stock) so long as (i) the purchase price paid
to the Borrower or such Subsidiary for such asset shall be no less than the fair
market value of such asset at the time of such sale, (ii) the purchase price for
such asset shall be paid to the Borrower or such Subsidiary solely in cash and
(iii) the aggregate purchase price paid to the Borrower and all of its
Subsidiaries for such asset and all other assets sold by the Borrower and its
Subsidiaries from and after the Closing Date pursuant to this clause (c) shall
not exceed $1,000,000; and no sale of any fixed asset shall be made if such sale
could impair the value or composition of the Collateral;
(d) The sale of the capital stock, properties or assets of Egerton
GRP;
(e) The sale of the Personality Connector Property, provided that the
--------
purchase price paid to the Borrower for such asset shall be no less than the
fair market value of such asset at the time of such sale; and
(f) The sale and leaseback of the Orpington Property between Egerton
Holdings or one of its Subsidiaries and a third party (the "Orpington
Sale/Leaseback"), provided, that such transaction occurs within twenty-four (24)
--------
months following the Closing Date and is consummated at fair market value;
provided, further, that in the case of sales of assets pursuant to Section
--------- -------
7.05(b), (c) or (f) above, the Borrower shall, on the date of receipt thereof,
apply the entire Net Cash Proceeds from such sale in accordance with Section
2.06.
SECTION 7.06 Investments in Other Persons.
----------------------------
Make or hold, or permit any of its Subsidiaries to make or hold, any
Investment in any Person other than:
(a) Investments by the Borrower and its Subsidiaries, if any, in their
Subsidiaries outstanding on the date hereof and described on Schedule 7.06, and
-------------
additional investments in Wholly-Owned Subsidiaries of the Borrower in an
aggregate amount invested from the date hereof not to exceed $1,000,000;
provided, however, that no more than an aggregate amount equal to $1,000,000
-------- -------
shall be made in Investments from the date hereof in Foreign Subsidiaries,
excluding
81
from such limitation the Egerton Intercompany Debt, which Debt shall not be
reborrowed after any repayments thereof; and, provided, further, that with
-------- -------
respect to Investments in any newly acquired or created Domestic Subsidiary, any
such Subsidiary shall become a Guarantor pursuant to the terms of the Guaranty
and shall otherwise comply with the provisions of Section 6.13 hereof;
(b) Loans and advances to officers and other employees in the ordinary
course of the business of the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $250,000 at any time outstanding;
(c) Investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(d) Investments by the Borrower and its Subsidiaries, if any, in Hedge
Agreements permitted under Section 6.14;
(e) Investments consisting of intercompany Debt permitted under
Section 7.02, subject to the limitation on aggregate Investments including
intercompany debt set forth in Section 7.06(a);
(f) Investments existing on the date hereof and described on Schedule
7.06 hereto;
(g) Investments consisting of amounts receivable arising in the
ordinary course of business; and
(h) Investments in the form of acquisitions permitted pursuant to
Section 7.04 hereof.
SECTION 7.07 Dividends, Etc.
---------------
Declare or pay any dividends, purchase, redeem, retire, defease or
otherwise acquire for value any of its capital stock or any warrants, rights or
options to acquire such capital stock, now or hereafter outstanding, return any
capital to its stockholders as such, make any distribution of assets, capital
stock, warrants, rights, options, obligations or securities to its stockholders
as such or issue or sell any capital stock or any warrants, rights or options to
acquire such capital stock, or permit any of its Subsidiaries to do any of the
foregoing or permit any of its Subsidiaries to purchase, redeem, retire, defease
or otherwise acquire for value any capital stock of the Borrower or any
warrants, rights or options to acquire such capital stock or to issue or sell
any such capital stock or any warrants, rights or options to acquire such
capital stock, except:
(a) The Borrower may declare and pay dividends and distributions;
payable solely in common stock of the Borrower;
(b) A Subsidiary may declare and pay dividends and distributions to
the Borrower; and
82
(c) For issuances of stock expressly permitted by Section 7.18.
SECTION 7.08 Change in Nature of Business.
----------------------------
Make, or permit any of its Subsidiaries to make, any material change in
the nature of its business as carried on at the date hereof.
SECTION 7.09 Charter Amendments.
------------------
Amend, or permit any of its Subsidiaries to amend, its certificate or
articles of incorporation or bylaws.
SECTION 7.10 Accounting Changes.
------------------
Make or permit, or permit any of its Subsidiaries to make or permit, any
change in (a) accounting policies or reporting practices, except as mandated by
GAAP, or (b) its Fiscal Year.
SECTION 7.11 Prepayments, Etc. of Debt.
-------------------------
(a) Prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment in violation
of any subordination terms of, any Debt, other than (i) the prepayment of the
Advances in accordance with the terms of this Agreement, and (ii) the payment,
as of the Closing Date, of such of the Existing Debt as shall not be Surviving
Debt, (ii) regularly scheduled or required repayments or redemptions of the
Surviving Debt, or (b) amend, modify or change in any manner any term or
condition of any Surviving Debt except as permitted under Section 7.01 or (c)
permit any of its Subsidiaries to do any of the foregoing other than to repay
any Debt payable to the Borrower.
SECTION 7.12 Amendment, Etc. of Acquisition Documents.
----------------------------------------
Cancel or terminate any Acquisition Document or consent to or accept
any cancellation or termination thereof, amend, modify or change in any manner
any term or condition of any Acquisition Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term or
condition of any Acquisition Document or take any other action in connection
with any Acquisition Document that would impair the value of the interests or
rights of the Borrower thereunder or that would impair the interests or rights
of the Administrative Agent or any Lender, or permit any of its Subsidiaries to
do any of the foregoing.
SECTION 7.13 Amendment, Etc. of Material Contracts.
-------------------------------------
Cancel or terminate any Material Contract or consent to or accept any
cancellation or termination thereof, amend or otherwise modify any Material
Contract or give any consent, waiver or approval thereunder, waive any default
under or breach of any Material Contract or take any other action in connection
with any Material Contract that would materially impair the
83
value of the interests or rights of the Borrower or any Subsidiary thereunder or
that would materially impair the interests or rights of the Administrative Agent
or any Lender, or permit any of its Subsidiaries to do any of the foregoing.
SECTION 7.14 Negative Pledge.
---------------
Enter into or suffer to exist, or permit any of its Subsidiaries to enter
into or suffer to exist, any agreement prohibiting or conditioning the creation
or assumption of any Lien upon any of its properties or assets other than as
provided in the Loan Documents or as permitted under Section 7.01 hereof.
SECTION 7.15 Partnerships, New Subsidiaries
------------------------------
Become a general partner in any general or limited partnership or joint
venture, or permit any of its Subsidiaries to do so, or (b) create any new
Subsidiary, except in compliance with the provisions of Section 6.13 and 7.06.
SECTION 7.16 Speculative Transactions.
------------------------
Engage, or permit any of its Subsidiaries to engage, in any transaction
involving commodity options or futures contracts or derivatives or any similar
speculative transactions, except for, if any, Hedge Agreements expressly
permitted under Section 6.14.
SECTION 7.17 Intentionally omitted.
SECTION 7.18 Issuance of Stock.
-----------------
(a) Directly or indirectly, and not permit any of its Subsidiaries to,
directly or indirectly, issue, sell, assign, pledge or otherwise encumber or
dispose of any shares of capital stock of the Borrower or any Subsidiary of the
Borrower or any other Equity Interests of any Subsidiary, except (i) to the
Borrower, (ii) to qualify directors if required by applicable law, (iii) for
issuances of common stock for cash by the Borrower to the extent expressly
permitted under Section 7.18(b) below.
(b) The Borrower shall not issue any capital stock, except for
issuances of its common stock for cash in each case in respect of any of the
foregoing issuances (including for cash) (i) on the condition that after giving
effect to such issuance no Default will exist; (ii) the Administrative Agent
and Required Lenders shall have consented to the terms and conditions of such
offering; and (iii) provided that in the event any common stock of the Borrower
--------
is issued pursuant to this Section, the Borrower shall, on the date of its
receipt thereof, apply the Net Cash Proceeds received in connection with such
issuance in accordance with Section 2.06.
84
SECTION 7.19 Transactions with Affiliates.
----------------------------
Except as expressly permitted by this Agreement, directly or indirectly:
(a) make any Investment in an Affiliate; (b) transfer, sell, lease, assign or
otherwise dispose of any assets to an Affiliate; (c) merge into or consolidate
with or purchase or acquire assets from an Affiliate, except as permitted under
Section 7.04; or (d) enter into any other transaction directly or indirectly
with or for the benefit of any Affiliate (including, without limitation,
guarantees and assumptions of obligations of an Affiliate); provided, however,
-------- -------
that: (i) payments on Investments expressly permitted by Section 7.06 hereof may
be made, (ii) any Affiliate who is a natural person may serve as an employee or
director of the Borrower or any other Loan Party and receive reasonable
compensation for his services in such capacity, and reimbursement for reasonable
out-of-pocket disbursements arising in such capacity in the ordinary course of
business (e.g., travel) (iii) the Borrower or any other Loan Party may enter
----
into any transaction with an Affiliate providing for the leasing of property,
the rendering or receipt of services or the purchase or sale of product,
inventory and other assets in the ordinary course of business if the monetary or
business consideration arising therefrom would be substantially as advantageous
to the Borrower or such other Loan Party as the monetary or business
consideration that would obtain in a comparable arm's length transaction with a
Person not an Affiliate.
SECTION 7.20 Intentionally omitted.
SECTION 7.21 Capital Expenditures. Make, or permit any of its
--------------------
Subsidiaries to make, any Capital Expenditures (including, without limitation,
obligations and expenditures under Capitalized Leases) that would cause the
aggregate of all such Capital Expenditures made by the Borrower and its
Subsidiaries in any period set forth below to exceed the amount set forth below
for such period:
Period Amount
------ ------
Closing Date through and
including December 31, 1998 $15,000,000
January 1, 1999 through and
including December 31, 1999 $ 6,000,000
January 1, 2000 through and
including December 31, 2000 $ 5,000,000
Each calendar year thereafter $ 5,000,000
; provided, however, that (a) amounts permitted to be expended in a Fiscal Year
-------- -------
that are not expended in such Fiscal Year shall be permitted to be expended in
(but only in) the subsequent Fiscal Year; and (b) amounts representing Capital
Expenditures paid or incurred with respect to an acquisition permitted under
Section 7.04 hereof in the ordinary course of its business prior to consummation
of a permitted acquisition shall not be deemed included in the calculation of
the
85
aggregate amount of Capital Expenditures for purposes of determining the maximum
annual Capital Expenditures permitted to be made hereunder, so long as such
amounts were incurred prior to the date of consummation of acquisitions
permitted hereunder and were not incurred in anticipation of such acquisition,
and otherwise conform with the terms and conditions of Section 7.02 hereof.
SECTION 7.22 Amendment, Etc. of Egerton Consideration Documents. Amend,
--------------------------------------------------
modify, supplement or waive any term, provision or condition of any of the
Egerton Consideration Documents, or consent to any departure by NatWest or any
Vendor therefrom, waive any default under or breach of any of the Egerton
Consideration Documents, or take any other action in connection with any of the
Egerton Consideration Documents, in each case without the prior written consent
of the Administrative Agent.
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ARTICLE VIII
EVENTS OF DEFAULT
If any one or more of the following events ("Events of Default") shall
-----------------
occur and be continuing then, and in any such event, the Administrative Agent
(i) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the Commitments of each appropriate Lender
(other than the Commitment in respect of Letter of Credit Advances by the
Issuing Bank or a Revolving Lender pursuant to Section 2.03(c)) and of the
Issuing Bank to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, (A) by notice to the Borrower, declare the
Notes, all interest thereon and all other amounts payable under this Agreement
and the other Loan Documents to be forthwith due and payable, whereupon the
Notes, all such interest and all such other amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
(B) by notice to each party required under the terms of any agreement in support
of which a Letter of Credit is issued, request that all Obligations under such
agreement be declared due and payable; provided, however, that in the event of
-------- -------
an actual or deemed entry of an order for relief with respect to any Loan Party
or any of its Subsidiaries under the Federal Bankruptcy Code, (1) the obligation
of each Lender to make Advances (other than Letter of Credit Advances by the
Issuing Bank pursuant to Section 2.03(c)) shall automatically be terminated and
(2) the Notes, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the Borrower:
SECTION 8.01 Payment
-------
(a) The Borrower shall fail to pay any principal of any Advance when
the same shall become due and payable or (b) the Borrower shall fail to pay any
interest on any Advance, or any Loan Party shall fail to make any other payment
under any Loan Document, in each case under this clause (b) within two (2)
Business Days after the same becomes due and payable; or
SECTION 8.02 Representations and Warranties.
-------------------------------
Any representation or warranty made by any Loan Party (or any of its
officers) under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made or confirmed; or
SECTION 8.03 Certain Covenants.
-----------------
The Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 2.14, 6.04, 6.05, 6.06, 6.07, 6.13, 6.15, 6.16 or
6.18, Article V or Article VII; or
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SECTION 8.04 Other Defaults; Material Contracts.
----------------------------------
Any Loan Party shall fail to perform any other term, covenant or agreement
contained in any Loan Document on its part to be performed or observed if such
failure shall remain unremedied for thirty (30) days after the earlier of the
date on which (i) a Responsible Officer of any Loan Party becomes aware of such
failure or (ii) written notice thereof shall have been given to the Borrower by
the Administrative Agent or any Lender; or
SECTION 8.05 Other Debt.
----------
Any Loan Party or any of its Subsidiaries shall fail to pay any principal
of, premium or interest on or any other amount payable in respect of any Debt
that is outstanding in a principal or notional amount of at least $250,000
either individually or in the aggregate (but excluding Debt outstanding
hereunder) of such Loan Party or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or any other event shall occur
or condition shall exist under any agreement or instrument relating to any such
Debt, in each case if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt or otherwise to cause,
or to permit the holder thereof to cause, such Debt to mature; or any such Debt
shall be declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
SECTION 8.06 Bankruptcy.
----------
Any Loan Party or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of thirty (30) days or any of
the actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur, or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
Section 8.06; or
------------
88
SECTION 8.07 Judgment.
--------
(a) Any judgment or order for the payment of money in excess of
$250,000 (other than such a judgment or order which is fully covered by
insurance for which the appropriate insurer has acknowledged responsibility in
writing) shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be a period of seven (7)
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(b) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect; or
SECTION 8.08 Material Provision.
------------------
Any material provision of any Loan Document after delivery thereof shall
for any reason cease to be valid and binding on or enforceable against any Loan
Party which is party to it, or any such Loan Party shall so state in writing; or
SECTION 8.09 Collateral Document.
-------------------
Any Collateral Document after delivery thereof shall for any reason cease
to or otherwise not create a valid and perfected first priority lien on and
security interest in the Collateral purported to be covered thereby; or
SECTION 8.10 Change of Control.
-----------------
(a) If any of the following shall occur:
(i) the sale, lease, or transfer, in one or a series of related
transactions, of all or substantially all of the Borrower's assets to any Person
or group (as such term is defined in Section 13(d)(3) of the Securities Act, as
amended); or
(ii) any Person who is not a stockholder of the Borrower on the
Closing Date acquires (together with its Affiliates) shares of capital stock of
the Borrower having fifteen percent (15%) or more of the ordinary voting power
to elect the Borrower's Board of Directors; or
(iii) Xxxxxxx Xxxxxxxx, Xx., shall cease for any reason whatsoever,
including, without limitation, death or disability (as such disability shall be
determined in the sole and absolute judgment of the Administrative Agent) to be
and continuously perform the duties of president (or more senior executive) of
the Borrower or, if such cessation shall occur as a result of the death or such
disability, no successor satisfactory to the Agent, in its sole discretion,
shall have become and shall have commenced to perform the duties of president
(or more senior executive) of the Borrower within forty-five (45) days after
such cessation; provided, however,
-------- -------
89
that if any satisfactory successor shall have been so elected and shall have
commenced performance of such duties within such period, the name of such
successor shall be deemed to have been inserted in place of Xxxxxxx Xxxxxxxx,
Xx., in this clause (iii) of this Section 8.10; or
(iv) during any period of twelve (12) consecutive calendar months,
individuals who at the beginning of such period constituted the Borrower's board
of directors (together with any new directors whose election by the Borrower's
board of directors or whose nomination for election by the Borrower's
stockholders was approved by a vote of at least two-thirds 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; or
SECTION 8.11 ERISA Events.
------------
(a) Any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of the last such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Loan Parties and the ERISA Affiliates related to such ERISA
Events) exceeds $500,000; or
(b) Any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $500,000 or requires payments exceeding $200,000 per
annum; or
(c) Any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $200,000; or
SECTION 8.12 Material Adverse Change.
-----------------------
There shall occur in the reasonable judgment of the Required Lenders any
Material Adverse Effect; or
SECTION 8.13 Post-Closing Agreement.
----------------------
The Borrower or any Subsidiary of the Borrower shall fail to perform or
observe any term, covenant or agreement contained in the Post-Closing Agreement;
or
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SECTION 8.14 Actions in Respect of the Letters of Credit upon Default.
--------------------------------------------------------
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in this
Article VIII or otherwise, make demand upon the Borrower to, and forthwith upon
such demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Administrative Agent determines that any funds held in the L/C
Cash Collateral Account are subject to any right or claim of any Person other
than the Administrative Agent and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.01 Authorization and Action. (a) Each Lender (in its capacity
------------------------
as a Lender and/or Hedge Bank) hereby appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
the Administrative Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. The Administrative
Agent shall have no duties or responsibilities except those expressly set forth
in this Agreement and the other Loan Documents and shall not be a trustee for
any Lender or Hedge Bank.
(b) As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders; provided, however, that the
-------- -------
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this
Agreement, any other Loan Document or applicable law and except for action
expressly required of the Administrative Agent hereunder or under the Loan
Documents, the Administrative Agent shall in all cases be fully justified in
failing or refusing to act hereunder or thereunder unless it shall be
indemnified to its satisfaction by the Lenders and Hedge Banks against any and
all liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
SECTION 9.02 Agent's Reliance, Etc.
---------------------
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (a) may treat the payee
of any Note as the holder thereof until the Administrative Agent receives and
accepts an Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 10.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any recitals, statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan
92
Document on the part of any Loan Party or to inspect the property (including the
books and records) of any Loan Party; (e) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
and (f) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy or telex) believed by it to be genuine and
signed or sent by or on behalf of the proper party or parties; and (g) may
employ agents and attorneys-in-fact and shall not be answerable for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care.
SECTION 9.03 Fleet and Affiliates.
--------------------
With respect to its Commitments, the Advances made by it and the Notes
issued to it, Fleet shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
the Administrative Agent; and the term "Lender" shall, unless otherwise
expressly indicated, include Fleet in its individual capacity. Fleet and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any such
Subsidiary and may accept fees and other consideration from the Borrower or its
Affiliates, for services in connection with this Agreement, the other Loan
Documents or otherwise, all as if Fleet were not the Administrative Agent and
without any duty to account therefor to the Lenders.
SECTION 9.04 Lender Credit Decision.
----------------------
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on the financial
statements referred to in Section 4.06 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 9.05 Indemnification.
---------------
(a) Each Lender severally agrees to indemnify the Administrative Agent
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of any of the Loan Documents or any transaction
contemplated hereby and thereby or any action taken or omitted by the
Administrative Agent under any of the Loan Documents; provided, however, that no
-------- -------
Lender shall be liable for any
93
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting from
the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the
Borrower under Section 10.04, to the extent that the Administrative Agent is not
promptly reimbursed for such costs and expenses by the Borrower.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of any of the Loan Documents or any action taken or
omitted by the Issuing Bank under any of the Loan Documents; provided, however,
-------- -------
that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Issuing Bank promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 8.04, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower.
(c) For purposes of Section 9.05(a), the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(i) the aggregate principal amount of the Advances outstanding at such time and
owing to the respective Lenders, (ii) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time;
(iii) their respective Unused Revolving Commitments at such time provided, that
--------
the Letter of Credit Advances owing to the Issuing Bank shall be considered to
be owed to the Issuing Bank ratably in accordance with their respective
Advances. In the event that any Defaulted Advance shall be owing by any
Defaulting Lender at any time, such Lender's Commitment with respect to the
Facility under which such Defaulted Advance was required to have been made shall
be considered to be unused for purposes of this Section 9.05 to the extent of
the amount of such Defaulted Advance. The failure of any Lender to reimburse
the Administrative Agent or the Issuing Bank promptly upon demand for its
ratable share of any amount required to be paid by the Lenders to the
Administrative Agent or the Issuing Bank, as the case may be, as provided herein
shall not relieve any other Lender of its obligation hereunder to reimburse the
Administrative Agent or the Issuing Bank, as the case may be, for its ratable
share of such amount, but no Lender shall be responsible for the failure of any
other Lender to reimburse the Administrative Agent or the Issuing Bank, as the
case may be, for such other Lender's ratable share of such amount but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse the Administrative Agent or the Issuing Bank, as the case may be, for
such other Lender Party's ratable share of such amount. Without prejudice to
the survival of any other agreements of any Lender hereunder, the agreement and
obligations of each
94
Lender contained in this Section 9.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 9.06 Events of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment of principal of or interest
on Loans) unless the Administrative Agent has received notice from a Lender or
the Borrower specifying such Default and stating that such notice is a "Notice
of Default". In the event that the Administrative Agent receives such a notice
of the occurrence of a Default, the Administrative Agent shall give notice
thereof to the Lenders (and shall give each Lender notice of each such non-
payment). The Administrative Agent shall (subject to Section 9.01(b) hereof)
take such action with respect to such Default as shall be directed by the
Required Lenders.
SECTION 9.07 Successor Administrative Agents.
-------------------------------
The Administrative Agent may resign as to any or all of the Facilities at
any time by giving written notice thereof to the Lenders and the Borrower and
may be removed as to all of the Facilities at any time with or without cause by
the Required Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent as to
such of the Facilities as to which the Administrative Agent has resigned or been
removed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within thirty
(30) days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be a Lender which is a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent as to all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations under this Agreement and the
other Loan Documents. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to less than all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as
95
Administrative Agent with respect to the Letter of Credit Facility) and payments
by the Borrower in respect of such Facilities, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
as to all of the Facilities, the provisions of this Article IX shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent as to any Facilities under this Agreement.
SECTION 9.08 Security Trustee. The Administrative Agent shall be the
----------------
"Security Trustee" under any of those pledge agreements which are expressed to
be governed by English law and shall accept without investigation, requisition
or objection such title as any person may have to the assets which are subject
to the English pledge agreements and shall not (a) be bound or concerned to
examine or inquire into the title of any person; (b) be liable for any defect or
failure in the title of any person, whether such defect or failure was known to
it or might have been discovered upon examination or inquiry and whether capable
of remedy or not; and (c) be liable for any failure on its part to give notice
of such pledge agreement to any third party or otherwise perfect or register the
security created by such pledge agreement. The Security Trustee shall hold the
benefit of the English pledge agreements upon trust for itself, the Lenders and
the Administrative Agent. Upon the appointment of any successor Security
Trustee, the resigning Security Trustee shall execute and deliver such documents
and do such other acts and things as may be necessary to vest in the successor
Security Trustee all the rights, title and interests vested in the resigning
Security Trustee.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendments, Etc.
---------------
No amendment or waiver of any provision of this Agreement or the Notes or
any other Loan Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
(or, in the case of the Collateral Documents, consented to) by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
-------- -------
(a) no amendment, waiver or consent shall, unless in writing and signed by all
of the Lenders (other than any Lender that is, at such time, a Defaulting
Lender), do any of the following at any time: (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations (it being
understood that a waiver of any Default or Event of Default shall not constitute
a change in the terms of any Commitment of any Lender), (ii) reduce the
principal of, or interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender (other than as a result of waiving the
applicability of any post-default increase in interest rates), (iii) postpone
any date fixed for any payment of principal of, or interest on, the Notes held
by such Lender or any fees or other amounts payable hereunder to such Lender or
(iv) change the order of application of any prepayment set forth in Section 2.06
in any manner that materially affects such Lender; (v) waive any of the
conditions specified in Section 3.02 or, in the case of the Initial Extension of
Credit, Section 3.01; (vi) change the number of Lenders or the percentage of
the Commitments or the aggregate unpaid principal amount of the Advances or the
aggregate Available Amount of outstanding Letters of Credit that, in each case,
shall be required for the Lenders or any of them to take any action hereunder;
(vii) release any of the Guarantors from their Guaranty; (viii) release any
material portion of the Collateral in any transaction or series of related
transactions except as expressly provided in the Loan Documents (including in
connection with any Asset Disposition permitted hereunder) or permit the
creation, incurrence, assumption or existence of any Lien on any material
portion of the Collateral in any transaction or series of related transactions
to secure any liabilities or obligations other than Obligations owing to the
Secured Parties under the Loan Documents; (ix) amend this Section 10.01; or (x)
limit the liability of any Loan Party under any of the Loan Documents; and
provided, further, that no amendment, waiver or consent shall, unless in writing
--------- --------
and signed by the Administrative Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Administrative Agent
under this Agreement or any other Loan Document.
SECTION 10.02 Notices Etc.
-----------
All notices and other communications provided for hereunder shall be in
writing (including telegraphic, telecopy or telex communication) and mailed,
telegraphed, telecopied, telexed or delivered,
97
(a) if to the Borrower:
Xxxxxxxx Commercial Corporation
00000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Irell & Xxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000 or 0553
(b) if to the Administrative Agent:
Fleet National Bank
1185 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx-Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(c) if to any Initial Lender or the Initial Issuing Bank, at its
Domestic Lending Office specified opposite its name on Schedule I attached
----------
hereto.
(d) if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender;
or, as to the Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other
98
address as shall be designated by such party in a written notice to the Borrower
and the Administrative Agent. All such notices and communications shall, when
mailed by certified mail, return receipt requested, telegraphed, telecopied or
telexed, be effective 3 days after mailing, upon delivery to the telegraph
company, upon transmission by telecopier or upon confirmation by telex
answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or IX shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of this Agreement, the Notes or any other Loan Document or
of any Exhibit hereto or thereto or of any amendment or waiver of any provision
thereof shall be as effective as delivery of a manually executed counterpart
thereof.
SECTION 10.03 No Waiver; Remedies; Counterclaims.
----------------------------------
No failure on the part of any Lender or the Administrative Agent to
exercise, and no delay in exercising, any right hereunder or under any Note or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The due payment and performance of the Obligations shall be without
regard to any counterclaim, right of offset or any other claim whatsoever that
the Borrower or other Loan Party may have against any Lender or the
Administrative Agent and without regard to any other obligation of any nature
whatsoever that any Lender or the Administrative Agent may have to the Borrower
or Loan Party, and no such counterclaim or offset shall be asserted by the
Borrower (unless such counterclaim or offset would, under applicable law, be
permanently and irrevocably lost if not brought in such action) in any action,
suit or proceeding instituted by any Lender or the Administrative Agent for
payment or performance of the Obligations.
SECTION 10.04 Costs and Expenses.
------------------
(a) The Borrower agrees to pay on demand (and without regard to the
making of any Advances hereunder) (i) all costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery
(but limited to reasonable costs and expenses of legal counsel to the
Administrative Agent in connection with the preparation, execution and delivery
of the Loan Documents) , administration, modification and amendment (including
any such document that is proposed but not executed and delivered) of the Loan
Documents (including, without limitation, (1) all due diligence, collateral
review, syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, audit, insurance, search, filing and
recording fees and expenses, and (2) the fees and expenses of counsel for the
Administrative Agent with respect thereto, including advising the Administrative
Agent as to its rights and responsibilities, or the perfection, protection or
preservation of rights or interests under the Loan Documents, negotiating with
any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default, presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of the Administrative Agent and the Lenders in connection
with the enforcement of the Loan Documents, whether in any action, suit or
litigation
99
or any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally or otherwise (including, without limitation, the fees and
expenses of counsel for the Administrative Agent and each Lender with respect
thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender and each of their respective Affiliates and
their respective officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
------------------
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any commenced
or threatened investigation, litigation or proceeding arising out of, related to
or in connection with (and whether under any federal securities law or any other
statute of any jurisdiction or any regulation or at common law or otherwise
against any Indemnified Party) (i) the Acquisition or any related transaction of
Borrower or any of its Subsidiaries or other Affiliates and any of the other
transactions contemplated by the Loan Documents, (ii) any acquisition or
proposed acquisition or similar business combination or proposed business
combination by Borrower or any of its Subsidiaries or other Affiliates of all or
any portion of the shares of capital stock or substantially all of the property
and assets of any other Person or any acts, practices or omissions of the
Borrower or its agents related thereto, or any withdrawals, termination or
cancellation of any such proposed transaction for any reason, (iii) the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit by the Borrower or any of its Subsidiaries or other Affiliates
and any of the other transactions contemplated by the Loan Documents, or (iv)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, in each case whether or
not such investigation, litigation or proceeding is brought by any Loan Party,
its directors, officers, employees, Equityholders or creditors or an Indemnified
Party or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. The Borrower also
agrees not to assert any claim against the Administrative Agent, any Lender or
any of their respective Affiliates, or any of their respective officers,
directors, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Acquisition, the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated thereby, other than claims for direct, as opposed
to consequential, damages which shall have been determined in a final
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Person's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of, any LIBOR Rate
Advance is made by the Borrower to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, as a result of a payment
or Conversion pursuant to subsection 2.09(b)(i) or 2.10(d), acceleration of the
maturity of the Notes pursuant to Article VIII or for any other reason, or by an
Eligible Assignee to a Lender other than on the last day of the Interest
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Period for such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 10.07, the Borrower shall, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or re-employment of deposits or other funds required by any
Lender to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
10.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 10.05 Right of Set-off.
----------------
The Borrower and each Guarantor hereby grant to each Lender a lien,
security interest and right of set-off as security for all liabilities and
obligations of the Borrower and such Guarantor, whether now existing or
hereafter arising, upon and against all deposits, credit, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
any Lender and any entity under the control of Fleet Financial Group, Inc. or in
transit to any of them. Upon (a) the occurrence and during the continuance of
any Default and (b) the making of the request or the granting of the consent
specified by Article VIII to authorize the Administrative Agent to declare the
Notes due and payable pursuant to the provisions of Article VIII, each Lender
and each of its respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and otherwise
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
or such Affiliate to or for the credit or the account of the Borrower or any of
its Subsidiaries against any and all of the Obligations of the Borrower now or
hereafter existing under this Agreement and the Note or Notes (if any) held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note or Notes and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower and
Administrative Agent after any such set-off and application; provided, however,
-------- -------
that the failure to give such notice shall not affect the validity of such set-
off and application. The rights of each Lender and its respective Affiliates
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its respective
Affiliates may have at law, in equity or otherwise. ANY AND ALL RIGHTS TO
REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ANY RIGHTS OR REMEDIES WITH RESPECT
TO ANY OTHER COLLATERAL WHICH SECURES THE ADVANCES
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PRIOR TO EXERCISING ANY RIGHT OF SET-OFF WITH RESPECT TO ANY DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR ARE HEREBY KNOWINGLY
VOLUNTARILY AND IRREVOCABLY WAIVED.
SECTION 10.06 Binding Effect
--------------
This Agreement shall become effective when it shall have been executed by
the Borrower and the Administrative Agent and when the Administrative Agent
shall have been notified by each Initial Lender and the Initial Issuing Bank
that each such Initial Lender and the Initial Issuing Bank has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign any of its
rights hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 10.07 Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
-------- -------
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of one or more Facilities, (ii)
immediately after such assignment, the assigning Lender, if it remains a Lender
hereunder, shall have a Commitment hereunder in no event less than $5,000,000,
(iii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000, (iv) each such assignment shall be to an
Eligible Assignee, (v) no such assignments shall be permitted without the prior
consent of the Administrative Agent (which may be withheld for any reason) until
the Administrative Agent shall have notified the Lenders that syndication of the
Commitments hereunder has been completed, (vi) no such assignment shall be
permitted if, immediately after giving effect thereto, the Borrower would be
required to make payments to or on behalf of the assignee Lender pursuant to
subsection 2.10(a) or (b) and the assignor Lender was not, at the time of such
assignment, entitled to receive any payment pursuant to subsection 2.10(a) or
(b), and (vii) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and any other documents, instruments or agreements as may be
necessary in connection therewith and a processing and recordation fee of
$3,500. Any Note issued to an assignee Lender hereunder shall be issued in
replacement of, but not in discharge of, the evidenced by the promissory note
held by the assigning Lender prior to such assignment and shall reflect the
amount of the respective Commitments and Advances held by such assignee
liability Lender and Assignor Lender after giving effect to such assignment.
102
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder 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
Lender assignor 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
any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, this Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (ii) such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Loan Party or the performance
or observance by any Loan Party of any of its obligations under any Loan
Document or any other instrument or document furnished pursuant thereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Article IV and 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 Administrative 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 confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) 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 or Issuing Bank, as the
case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 10.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment under each Facility of, and principal amount of
the Advances owing under each Facility to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
---------
all purposes, absent manifest error, and the Borrower, the Administrative Agent
and the Lenders may
103
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment and the appropriate processing and reconciliation fee, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit A hereto, (i) accept such Assignment
---------
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. In the case of any
assignment by a Lender, within five (5) Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it under a Facility pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder under such Facility, a new
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
---------
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
-------- -------
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,000.
(g) Each Lender may sell participations to one or more Persons (other
than any Loan Party or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments, the Advances owing to it and the Note or Notes,
if any, held by it); at any time and from time to time and without the consent
of notice to the Borrower or any Guarantor, provided, however, that (i) such
-------- -------
Lender's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) no participant under any such participation shall have any right to approve
any amendment, waiver or other modification of any provision of this Agreement
or any other Loan Document, or any consent to any departure by any Loan
therefrom, except to the extent that such amendment, waiver, modification or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment
104
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(h) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided, however, that, prior to any such disclosure, the
-------- -------
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information received by it from
such Lender.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any of the twelve
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act 12
U.S.C. Section 341 in accordance with Regulation A of the Board of Governors of
the Federal Reserve System. No such pledge or enforcement thereof shall release
any Lender from its obligations under any of the Loan Documents.
(j) Fleet may syndicate the Facilities to other lenders. Any such
syndication will be managed by Fleet. The Borrower shall assist Fleet in
forming such syndication and shall provide Fleet and any potential lender,
assignee or participant, promptly upon request, with all information deemed
reasonably necessary by them to complete successfully such syndication,
including, without limitation, all information and projections prepared by the
Borrower or its officers or advisers relating to the transactions contemplated
herein. The Borrower shall make appropriate officers and representatives of the
Borrower and its Subsidiaries available to participate in information meetings
for potential syndicate members and participants at such times and places as
Fleet may reasonably request. In connection with such syndication, Fleet may,
in its sole discretion, allocate to other Lenders portions of any fees payable
to Fleet in connection with the Facilities.
SECTION 10.08 Execution in Counterparts.
-------------------------
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be as effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.09 No Liability of the Issuing Bank.
--------------------------------
The Borrower assumes all risks of the acts or omissions of any beneficiary
or transferee of any Letter of Credit with respect to its use of such Letter of
Credit. Neither the Issuing Bank nor any of its officers, directors, employees
or agents shall be liable or responsible for: (a) the use that may be made of
any Letter of Credit or any acts or omissions of any beneficiary or transferee
in connection therewith; (b) the validity, sufficiency or genuineness of
documents, or
105
of any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (c) payment by the
Issuing Bank against presentation of documents that do not comply with the terms
of a Letter of Credit, including failure of any documents to bear any reference
or adequate reference to the Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under any Letter of Credit,
except that the Borrower shall have a claim against the Issuing Bank, and the
Issuing Bank shall be liable to the Borrower, to the extent of any direct, but
not consequential, damages suffered by the Borrower that the Borrower proves
were caused by (i) the Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) the Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 10.10 Survival of Agreements and Representations; Construction.
--------------------------------------------------------
All agreements, representations and warranties made herein shall survive
the delivery of this Agreement and the Notes. The headings used in this
Agreement and the table of contents are for convenience only and shall not be
deemed to constitute a part hereof
SECTION 10.11 Confidentiality.
---------------
Neither the Administrative Agent nor any Lender shall disclose any
Confidential Information to any Person without the consent of the Borrower,
other than (a) to the Administrative Agent or to the Administrative Agent's or
such Lender's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
SECTION 10.12 Further Assurances.
------------------
(a) At any time and from time to time, upon the request of the
Administrative Agent, the Borrower and each other Loan Party shall execute,
deliver and acknowledge or cause to be executed, delivered and acknowledged,
such further documents and instruments and do such other acts and things as the
Administrative Agent may reasonably request in order to fully effect the
purposes of this Agreement, the other Loan Documents and any other agreements,
instruments and documents delivered pursuant hereto or in connection with the
Loans, including, without limitation, the execution and delivery to the
Administrative Agent of mortgages in form and substance satisfactory to the
Administrative Agent covering all real property or interests therein acquired by
the Borrower or other Loan Party, and all leases of real property entered into
by the Borrower or other Loan Party as tenant or lessee, after the date of this
Agreement, promptly after such acquisition or the entering into of any such
lease.
106
(b) Upon receipt of an affidavit of an officer of the Administrative
Agent or any Lender as to the loss, theft, destruction or mutilation of any Note
or Security Document which is not of public record, and, in the case of any such
mutilation, upon the surrender and cancellation of such Note or Security
Document, the Borrower will issue, in lieu thereof, a replacement Note or other
Security Document in the same principal amount thereof (in the case of any Note)
and otherwise of like tenor.
SECTION 10.13 Severability.
------------
The provisions of this Agreement are severable, and if any clause or
provision hereof shall be held invalid or unenforceable in whole or in part in
any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Agreement in any jurisdiction. Each of the
covenants, agreements and conditions contained in this Agreement is independent
and compliance by the Borrower with any of them shall not excuse non-compliance
by the Borrower with any other. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or an Event of Default if such action is taken or
condition exists.
SECTION 10.14 JURISDICTION, ETC.
-----------------
(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT IN THE COUNTY OF NEW YORK OR UNITED STATES DISTRICT COURT
IN THE SOUTHERN DISTRICT OF NEW YORK, NEW YORK AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE
COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY JURISDICTION.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT IT MAY LEGALLY AND
107
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW
YORK STATE OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
SECTION 10.15 GOVERNING LAW.
-------------
THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.16 WAIVER OF JURY TRIAL.
--------------------
EACH OF THE BORROWER, THE LOAN PARTIES, THE ADMINISTRATIVE AGENT AND THE
LENDERS VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY
LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE LENDERS AND THE
ADMINISTRATIVE AGENT TO ENTER INTO THIS AGREEMENT AND TO MAKE ADVANCES
HEREUNDER.
SECTION 10.17 Foreign Exchange Indemnity. If any sum due from the
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Borrower or any Subsidiary under this Agreement or any other Loan Document or
any order or judgment given or made in relation hereto or thereto has to be
converted from the currency (the "first currency") in which the same is payable
hereunder or under such order or judgment into another currency (the "second
currency") for the purpose of (i) making or filing a claim or proof against the
Borrower or any Subsidiary with any Regulatory Agency or in any court or
tribunal or (ii) enforcing any order or judgment given or made in relation
hereto, the Borrower shall indemnify and hold harmless each of the Persons to
whom such sum is due from and against any loss actually suffered as a result of
any discrepancy between (a) the rate of exchange used to convert the amount in
question from the first currency into the second currency and (b) the rate or
rates of exchange at which such Person, acting in good faith in a commercially
reasonable manner, purchased the first currency with the second currency after
receipt of a sum paid to it in the second currency in satisfaction, in whole or
in part, of any such order, judgment, claim or proof. The foregoing indemnity
shall constitute a separate obligation of the Borrower distinct from its other
obligations hereunder and shall survive the giving or making of any judgment or
order in relation to all or any of such other obligations.
108
SECTION 10.18 FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE NOTES AND
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THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES. THE PARTIES HERETO ACKNOWLEDGE AND AFFIRM THE STATEMENT MADE IN
THE PRECEDING SENTENCE.
[SIGNATURE PAGES FOLLOW]
109
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
XXXXXXXX COMMERCIAL CORPORATION
By: /s/ Xxxx X. Xxxxx
________________________________________
Name: XXXX X. XXXXX
Title: CHIEF FINANCIAL OFFICER
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT
By: /s/ Xxxx Xxxx
__________________________________________
Name: Xxxx Xxxx
Title: Director
FLEET NATIONAL BANK,
AS ISSUING BANK
By: /s/ Xxxx Xxxx
_________________________________________
Name: Xxxx Xxxx
Title: Director
[Signature page to Credit Agreement]
[Signatures continued on following page]
110
INITIAL LENDERS
FLEET NATIONAL BANK, INDIVIDUALLY
By: /s/ Xxxx Xxxx
_________________________________________
Name: Xxxx Xxxx
Title: Director
[Signature page to Credit Agreement]
111
