EXHIBIT 99.2
CREDIT AGREEMENT
DATED AS OF DECEMBER 4, 2003
AMONG
BRUSH ENGINEERED MATERIALS INC.,
THE OTHER BORROWERS PARTY HERETO,
THE LOAN PARTIES PARTY HERETO,
THE LENDERS PARTY HERETO FROM TIME TO TIME,
BANK ONE, NA,
AS AGENT AND LC ISSUER,
LASALLE BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
AND
BANC ONE CAPITAL MARKETS, INC.,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS......................................................................................... 1
ARTICLE II. THE FACILITY....................................................................................... 26
2.1. The Facility........................................................................................... 26
2.2. Ratable Loans; Risk Participation...................................................................... 34
2.3. Payment of the Obligations; Currency................................................................... 34
2.4. Minimum Amount of Each Advance......................................................................... 35
2.5. Funding Account........................................................................................ 35
2.6. Reliance Upon Authority; No Liability.................................................................. 35
2.7. Conversion and Continuation of Outstanding Advances.................................................... 35
2.8. Telephonic Notices..................................................................................... 35
2.9. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions........................ 36
2.10. Fees................................................................................................... 36
2.11. Interest Rates......................................................................................... 36
2.12. Fixed Rate Advances Post Default; Default Rates........................................................ 37
2.13. Interest Payment Dates; Interest and Fee Basis......................................................... 37
2.14. Voluntary Prepayments.................................................................................. 38
2.15. Mandatory Prepayments.................................................................................. 38
2.16. Termination of the Facility............................................................................ 39
2.17. Method of Payment...................................................................................... 40
2.18. Apportionment, Application and Reversal of Payments.................................................... 40
2.19. Settlement............................................................................................. 41
2.20. Indemnity for Returned Payments........................................................................ 42
2.21. Note; Evidence of Indebtedness......................................................................... 42
2.22. Lending Installations.................................................................................. 43
2.23. Non-Receipt of Funds by the Agent...................................................................... 43
2.24. Consolidation of Substitute Notes...................................................................... 43
2.25 Exchange Rate Fluctuations............................................................................. 43
2.26 Full Recourse Obligations; Fraudulent Conveyance Matters............................................... 44
ARTICLE III. YIELD PROTECTION; TAXES........................................................................... 44
3.1. Yield Protection....................................................................................... 44
3.2. Changes in Capital Adequacy Regulations................................................................ 45
3.3. Availability of Types of Advances...................................................................... 45
3.4. Funding Indemnification................................................................................ 46
3.5. Taxes.................................................................................................. 46
3.6. Lender Statements; Survival of Indemnity............................................................... 47
ARTICLE IV. CONDITIONS PRECEDENT............................................................................... 48
4.1. Effectiveness.......................................................................................... 48
4.2. Each Credit Extension.................................................................................. 51
4.3. Post-Closing Conditions................................................................................ 51
ARTICLE V. REPRESENTATIONS AND WARRANTIES...................................................................... 52
5.1. Existence and Standing................................................................................. 52
5.2. Authorization and Validity............................................................................. 52
5.3. No Conflict; Government Consent........................................................................ 52
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5.4. Security Interest in Collateral........................................................................ 52
5.5. Financial Statements................................................................................... 53
5.6. Material Adverse Change................................................................................ 53
5.7. Taxes.................................................................................................. 53
5.8. Litigation and Contingent Obligations.................................................................. 53
5.9. Subsidiaries........................................................................................... 53
5.10. ERISA.................................................................................................. 54
5.11. Accuracy of Information................................................................................ 54
5.12. Names; Prior Transactions.............................................................................. 54
5.13. Regulation U........................................................................................... 54
5.14. Material Agreements.................................................................................... 54
5.15. Compliance With Laws................................................................................... 54
5.16. Ownership of Properties................................................................................ 55
5.17. Plan Assets; Prohibited Transactions................................................................... 55
5.18. Environmental Matters.................................................................................. 55
5.19. Investment Company Act................................................................................. 55
5.20. Public Utility Holding Company Act..................................................................... 55
5.21. Bank Accounts.......................................................................................... 55
5.22. Indebtedness........................................................................................... 55
5.23. Affiliate Transactions................................................................................. 55
5.24. Real Property; Leases.................................................................................. 55
5.25. Intellectual Property Rights........................................................................... 56
5.26. Insurance.............................................................................................. 56
5.27. Solvency............................................................................................... 56
5.28. Subordinated Indebtedness.............................................................................. 56
5.29. Post-Retirement Benefits............................................................................... 56
5.30. Common Enterprise...................................................................................... 56
5.31. Reportable Transactions................................................................................ 57
5.32. Labor Disputes......................................................................................... 57
5.33 Specifically Designated National and Blocked Persons................................................... 57
ARTICLE VI. COVENANTS.......................................................................................... 57
6.1. Financial and Collateral Reporting..................................................................... 57
6.2. Use of Proceeds........................................................................................ 60
6.3. Notices................................................................................................ 60
6.4. Conduct of Business.................................................................................... 61
6.5. Taxes.................................................................................................. 62
6.6. Payment of Indebtedness and Other Liabilities.......................................................... 62
6.7. Insurance.............................................................................................. 62
6.8. Compliance with Laws................................................................................... 63
6.9. Inspection............................................................................................. 64
6.10. Appraisals............................................................................................. 64
6.11. Communications with Accountants........................................................................ 64
6.12. Collateral Waiver Agreements and Real Estate Purchases................................................. 64
6.13. Deposit Account Control Agreements..................................................................... 65
6.14. Additional Collateral; Further Assurances.............................................................. 65
6.15. Dividends.............................................................................................. 66
6.16. Indebtedness........................................................................................... 66
6.17. Capital Structure...................................................................................... 67
6.18. Merger................................................................................................. 67
6.19. Sale of Assets......................................................................................... 67
6.20. Investments and Acquisitions........................................................................... 68
6.21. Liens.................................................................................................. 69
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6.22. Change of Name or Location; Change of Fiscal Year...................................................... 70
6.23. Affiliate Transactions................................................................................. 70
6.24. Amendments to Agreements............................................................................... 71
6.25. Prepayment of Indebtedness; Subordinated Indebtedness.................................................. 71
6.26. Letters of Credit...................................................................................... 71
6.27. Financial Contracts.................................................................................... 71
6.28. Capital Expenditures................................................................................... 71
6.29. Financial Covenants.................................................................................... 72
6.30. Depository Banks....................................................................................... 72
6.31. Off Balance Sheet Liabilities; Sale and Leaseback Transactions......................................... 72
6.32. Sales of Accounts...................................................................................... 72
6.33. Subordination of Intercompany Notes.................................................................... 72
6.32. Sales of Accounts...................................................................................... 73
ARTICLE VII. DEFAULTS.......................................................................................... 73
ARTICLE VIII. REMEDIES; WAIVERS AND AMENDMENTS................................................................. 76
8.1. Remedies............................................................................................... 76
8.2. Waivers by Loan Parties................................................................................ 77
8.3. Amendments............................................................................................. 77
8.4. Preservation of Rights................................................................................. 78
ARTICLE IX. GENERAL PROVISIONS.................................................................................. 78
9.1. Survival of Representations............................................................................ 78
9.2. Governmental Regulation................................................................................ 78
9.3. Headings............................................................................................... 78
9.4. Entire Agreement....................................................................................... 78
9.5. Several Obligations; Benefits of this Agreement........................................................ 79
9.6. Expenses; Indemnification.............................................................................. 79
9.7. Numbers of Documents................................................................................... 80
9.8. Accounting............................................................................................. 80
9.9. Severability of Provisions............................................................................. 81
9.10. Nonliability of Lenders................................................................................ 81
9.11. Confidentiality........................................................................................ 81
9.12. Nonreliance............................................................................................ 81
9.13. Disclosure............................................................................................. 81
ARTICLE X. THE AGENT............................................................................................ 82
10.1. Appointment; Nature of Relationship.................................................................... 82
10.2. Powers................................................................................................. 82
10.3. General Immunity....................................................................................... 83
10.4. No Responsibility for Loans, Recitals, etc............................................................. 83
10.5. Action on Instructions of Lenders...................................................................... 83
10.6. Employment of Agents and Counsel....................................................................... 83
10.7. Reliance on Documents; Counsel......................................................................... 83
10.8. Agent's Reimbursement and Indemnification.............................................................. 83
10.9. Notice of Default...................................................................................... 84
10.10. Rights as a Lender..................................................................................... 84
10.11. Lender Credit Decision................................................................................. 84
10.12. Successor Agent........................................................................................ 84
10.14. Delegation to Affiliates............................................................................... 85
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10.15. Execution of Loan Documents............................................................................ 85
10.16. Collateral Matters..................................................................................... 85
10.17. Syndication Agent...................................................................................... 87
ARTICLE XI. SETOFF; RATABLE PAYMENTS............................................................................ 87
11.1. Setoff................................................................................................. 87
11.2. Ratable Payments....................................................................................... 87
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................................. 87
12.1. Successors and Assigns................................................................................. 87
12.2. Participations......................................................................................... 88
12.3. Assignments............................................................................................ 89
12.4. Dissemination of Information........................................................................... 90
12.5. Tax Treatment.......................................................................................... 90
12.6. Assignment by LC Issuer................................................................................ 90
ARTICLE XIII. NOTICES.......................................................................................... 90
13.1. Notices; Effectiveness; Electronic Communication....................................................... 90
13.2. Change of Address...................................................................................... 91
ARTICLE XIV. COUNTERPARTS....................................................................................... 92
ARTICLE XV. GUARANTY........................................................................................... 92
15.1. Guaranty............................................................................................... 92
15.2. Guaranty of Payment.................................................................................... 92
15.3. No Discharge or Diminishment of Guaranty............................................................... 92
15.4. Defenses Waived........................................................................................ 93
15.5. Rights of Subrogation.................................................................................. 94
15.6. Reinstatement; Stay of Acceleration.................................................................... 94
15.7. Information............................................................................................ 94
15.8. Termination............................................................................................ 94
15.9. Taxes.................................................................................................. 94
15.10. Severability........................................................................................... 94
15.11. Contribution........................................................................................... 95
15.12. Lending Installations.................................................................................. 95
15.13. Liability Cumulative................................................................................... 95
ARTICLE XVI. CASH MANAGEMENT................................................................................... 95
16.1. Lockbox and Cash Management Account.................................................................... 95
16.2. Application of Payments................................................................................ 96
ARTICLE XVII. RELATIONSHIP OF THE BORROWER AND THE OTHER LOAN PARTIES........................................... 97
17.1. Notices................................................................................................ 97
17.2. Execution of Loan Documents; Borrowing Base Certificate................................................ 97
17.3. Reporting.............................................................................................. 97
17.4. Disbursement of Loan Proceeds.......................................................................... 97
17.5. Authorization of Domestic Borrower as Representative................................................... 98
ARTICLE XVIII. USA PATRIOT ACT NOTIFICATION.................................................................... 98
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ARTICLE XIX. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...................................... 98
19.1. Choice of Law.......................................................................................... 98
19.2. Consent to Jurisdiction................................................................................ 98
19.3. Waiver of Jury Trial................................................................................... 99
19.4. Confession of Judgment................................................................................. 99
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COMMITMENT SCHEDULE
PRICING GRID
EXHIBIT A - FORM OF BORROWING NOTICE
EXHIBIT B - FORM OF CONVERSION/CONTINUATION NOTICE
EXHIBIT C-1 - REVOLVING NOTE
EXHIBIT C-2 - SINGAPORE REVOLVING NOTE
EXHIBIT X-0 - XXXX X XXXX
XXXXXXX X-0 - XXXX X NOTE
EXHIBIT D - FORM OF OPINION
EXHIBIT E - COMPLIANCE CERTIFICATE
EXHIBIT F - JOINDER AGREEMENT
EXHIBIT G - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT H - BORROWING BASE CERTIFICATE
TABLE OF SCHEDULES
Schedule 5.8 - Litigation and Contingent Obligations
Schedule 5.9 - Subsidiaries and Capitalization
Schedule 5.12 - Names, Prior Transactions
Schedule 5.14 - Material Agreements
Schedule 5.16 - Ownership of Properties
Schedule 5.17 - Environmental
Schedule 5.22 - Indebtedness
Schedule 5.23 - Affiliate Transactions
Schedule 5.24 - Real Property; Leases
Schedule 5.25 - Intellectual Property Rights
Schedule 5.26 - Insurance
Schedule 5.32 - Labor Disputes
Schedule 6.20 - Other Investments
Schedule 6.22 - Liens
Schedule 6.26 - Letters of Credit
Schedule 6.31 - Nonrecourse Liabilities
Schedule 16.1 - P.O./Lock Boxes
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CREDIT AGREEMENT
This Agreement, dated as of December 4, 2003, is among Brush Engineered
Materials Inc. (the "Company"), as a Borrower, the other Borrowers, the other
Loan Parties, the Lenders and Bank One, NA, a national banking association
having its principal office in Columbus, Ohio, as an LC Issuer and as Agent.
RECITALS
WHEREAS, the Borrowers have requested that the Lenders make available
to the Borrowers loans and other extensions of credit in an aggregate principal
amount not to exceed $105,000,000, which extensions of credit will be used by
the Borrowers for the purposes set forth in Section 6.2;
WHEREAS, the Borrowers and the other Loan Parties have agreed to secure
all of their obligations under the Loan Documents by granting to the Agent, for
the benefit of the Lenders, a security interest in and lien upon the Collateral
as set forth in the Collateral Documents; and
WHEREAS, the Guarantors have agreed to guarantee all of the Obligations
of the Borrowers under the Loan Documents to the Agent and the Lenders as set
forth in the Guaranty.
NOW THEREFORE, in consideration of these premises and the terms and
conditions set forth in this Agreement, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Account" shall have the meaning given to such term in the Security
Agreement.
"Account Debtor" means any Person obligated on an Account.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the Closing Date, by which any Loan Party
(a) acquires any going business or all or substantially all of the assets of any
Person, whether through purchase of assets, merger or otherwise or (b) directly
or indirectly acquires (in one transaction or as the most recent transaction in
a series of transactions) at least a majority (in number of votes) of the
Capital Stock of a Person which has ordinary voting power for the election of
directors or other similar management personnel of a Person (other than Capital
Stock having such power only by reason of the happening of a contingency) or a
majority of the outstanding Capital Stock of a Person.
"Advance" means a borrowing hereunder, (a) made to the same Borrower on
the same Borrowing Date, or (b) converted or continued by the Lenders on the
same date of conversion or continuation, consisting, in either case, of the
aggregate amount of the several Loans of the same Type and currency and, in the
case of Fixed Rate Loans, for the same Interest Period. The term Advance shall
include Non-Ratable Loans, Overadvances and Protective Advances unless otherwise
expressly provided.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 20% or
more of the outstanding voting power of the Capital Stock of the controlled
Person or possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether
through ownership of Capital Stock, by contract or otherwise.
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Notwithstanding the foregoing, a director, officer or employee of a Person shall
not, solely because of such status, be deemed an Affiliate of such Person.
"Agent" means Bank One in its capacity as contractual representative of
the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Borrowing Base" means, at any time, the aggregate of the
Aggregate Domestic Borrowing Base and the Aggregate Singapore Borrowing Base.
"Aggregate Borrowing Base Certificate" means a certificate signed by an
Authorized Officer, in the form of Exhibit H or another form which is acceptable
to the Agent in its sole discretion.
"Aggregate Commitment" means the amount of $105,000,000, as reduced
from time to time pursuant to the terms hereof.
"Aggregate Credit Exposure" means, at any time, the aggregate of the
Aggregate Domestic Credit Exposure and the Aggregate Singapore Exposure, at such
time.
"Aggregate Domestic Borrowing Base" means the aggregate of the Domestic
Borrowing Bases of all of the Domestic Borrowers.
"Aggregate Domestic Credit Exposure" means, at any time, the aggregate
of the Domestic Credit Exposure of all of the Domestic Lenders at such time.
"Aggregate Domestic Revolving Exposure" means, at any time, the
aggregate of the Domestic Revolving Exposure of all Domestic Lenders at such
time.
"Aggregate Revolving Commitment" means the amount of $85,000,000, as
reduced from time to time pursuant to the terms hereof.
"Aggregate Revolving Exposure" means, at any time, the aggregate of the
Domestic Revolving Exposure of all Domestic Lenders and the Singapore Exposure
of all Singapore Lenders.
"Aggregate Singapore Borrowing Base" means the aggregate of the
Singapore Borrowing Bases of all of the Singapore Borrowers.
"Aggregate Singapore Commitment" means the aggregate of the Singapore
Commitments of all Singapore Lenders, as reduced from time to time pursuant to
the terms hereof, which Aggregate Singapore Commitment shall be in the amount of
Four Million Dollars ($4,000,000).
"Aggregate Singapore Exposure" means, at any time, the aggregate of the
Singapore Exposure of all Singapore Lenders, at such time.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (a) the Prime Rate for such day and (b) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Agent" means the Agent or the Singapore Correspondent
Lender, as the case may be.
2
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which fees accrue on Available Revolving Commitment at such time as set forth
in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3(a).
"Authorized Officer" means any of the Chief Executive Officer, Chief
Financial Officer, Chief Operating Officer, President, Treasurer or Assistant
Treasurer of the Company, acting singly.
"Availability" means, at any time, an amount equal to (a) the Maximum
Borrowing Amount, minus (b) the Aggregate Revolving Exposure.
"Available Revolving Commitment" means, at any time, the Aggregate
Revolving Commitment then in effect minus the Aggregate Revolving Exposure at
such time; provided that, for the purposes of this definition only, "Aggregate
Revolving Exposure" shall not include any Overadvances.
"Bank One" means Bank One, NA, a national banking association, in its
individual capacity, and its successors.
"Banking Services" means each and any of the following bank services
provided to any Loan Party by Bank One, the other Lenders, or any of their
respective Affiliates: (a) commercial credit cards, (b) stored value cards, (c)
treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and
interstate depository network services), (d) leasing services, and (e) Rate
Management Transactions.
"Banking Services Obligations" of the Loan Parties means any and all
obligations of the Loan Parties, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor) in connection
with Banking Services.
"Banking Services Reserves" means all Reserves which the Agent from
time to time establishes in its Permitted Discretion for Banking Services then
provided or outstanding.
"Bankruptcy Code" means, as applicable, Title 11 of the U.S. Code (11
U.S.C. Section 101 et seq.), or any other bankruptcy, insolvency, liquidation,
winding-up, corporate or similar statute or law, in any applicable jurisdiction,
now or hereafter existing, as any of the foregoing may be amended from time to
time, or other applicable statute for jurisdictions outside of the United
States, as the case may be, and any rule or regulation issued thereunder.
"Borrower" or "Borrowers" means, collectively or individually, as the
context may require, the Domestic Borrowers, the Singapore Borrower, and their
successors and assigns.
3
"Borrowing Base Certificate" means a certificate in the form of Exhibit
H or another form which is acceptable to the Agent in its sole discretion.
"Borrowing Date" means a date on which an Advance or a Loan is made
hereunder.
"Borrowing Notice" is defined in Section 2.1.1(c).
"Business Day" means (a) with respect to any borrowing, payment or rate
selection of Fixed Rate Advances provided by the Domestic Lenders, a day (other
than a Saturday or Sunday) on which banks generally are open in Chicago and New
York City for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and
dealings in Dollars are carried on in the London interbank market; (b) with
respect to any borrowing, payment or rate selection of Fixed Rate Advances
provided by the Singapore Lenders, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, New York City, and Singapore for the
conduct of substantially all of their commercial lending activities, interbank
wire transfers can be made on the Fedwire system, and dealings in Dollars, and
Singapore Dollars are carried on in the London interbank market, and (c) for all
other purposes, a day (other than a Saturday or Sunday) on which banks generally
are open in Chicago for the conduct of substantially all of their commercial
lending activities and interbank wire transfers can be made on the Fedwire
system.
"Capital Expenditures" means, without duplication, any expenditure of
money for any purchase or other acquisition or development of any asset which
would be classified as a fixed or capital asset on a consolidated balance sheet
of the Company and its Subsidiaries prepared in accordance with GAAP.
"Capital Stock" means any and all corporate stock, units, shares,
partnership interests, membership interests, equity interests, rights,
securities, or other equivalent evidences of ownership (howsoever designated)
issued by any Person.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the aggregate amount
of the obligations of such Person under Capitalized Leases which would be shown
as a liability on a balance sheet of such Person prepared in accordance with
GAAP.
"Cash Equivalent Investments" means (a) direct obligations of, or fully
guaranteed by, the U.S. maturing within one year from the date of acquisition
thereof, (b) commercial paper rated A-1 or better by S&P or P-1 or better by
Moody's, (c) demand deposit accounts maintained in the ordinary course of
business, and (d) certificates of deposit issued by and time deposits with any
Domestic Lender or any commercial bank (whether domestic or foreign) having
capital and surplus in excess of $100,000,000; provided that, in each case, the
same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest and any Singapore equivalent.
"Cash Management Account" is defined in Section 16.1.
"Change" is defined in Section 3.2(a).
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding voting Capital Stock of the
Company.
4
"Clean-Up Reserve" means a reserve for clean-up costs in the amount of
$5,000,000.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder, or the Singapore equivalent, if applicable.
"Collateral" means any and all Property covered by the Collateral
Documents and any and all other Property of any Loan Party, now existing or
hereafter acquired, that may at any time be or become subject to a security
interest or Lien in favor of the Agent or the Singapore Correspondent Lender, as
the case may be, on behalf of itself and the Lenders, to secure the Secured
Obligations, or any portion thereof.
"Collateral Access Agreement" means any landlord waiver or other
agreement, in form and substance satisfactory to the Agent, between the Agent
and any third party (including any bailee, consignee, customs broker, or other
similar Person) in possession of any Collateral or any landlord of any Loan
Party for any real Property where any Collateral is located, as such landlord
waiver or other agreement may be amended, restated, or otherwise modified from
time to time.
"Collateral Documents" means, collectively, the Security Agreement, the
Mortgages, the Foreign Collateral Documents, and any other documents granting a
Lien upon the Collateral as security for payment of the Secured Obligations, or
any portion thereof as the case may be.
"Collateral Shortfall Amount" is defined in Section 2.1.2(l).
"Commitment" means, with respect to any Lender, individually or
collectively, as the context may require, its Domestic Commitment and Singapore
Commitment.
"Commitment Schedule" means the Schedule attached hereto identified as
such and as it may be amended pursuant to the terms of this Agreement.
"Company" means Brush Engineered Materials Inc., an Ohio corporation.
"Compliance Certificate" is defined in Section 6.1(e).
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Company and its Subsidiaries calculated
on a consolidated basis for such period.
"Consolidated EBITDA" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (a) Consolidated
Interest Expense, (b) Consolidated Tax Expense, (c) depreciation, (d)
amortization, (e) depletion expense and (f) nonrecurring losses incurred other
than in the ordinary course of business, minus, to the extent included in
Consolidated Net Income, nonrecurring gains realized other than in the ordinary
course of business, all calculated for the Company and its Subsidiaries on a
consolidated basis.
"Consolidated EBITDAR" means Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (a)
Consolidated Interest Expense, (b) Consolidated Tax Expense, (c) depreciation,
(d) amortization, (e) rental expense, (f) depletion expense and (g) nonrecurring
losses incurred other than in the ordinary course of business, minus, to the
extent included in Consolidated Net Income, nonrecurring gains realized other
than in the ordinary course of business, all calculated for the Company and its
Subsidiaries on a consolidated basis. For purposes of this definition, "rental
expense" means, for any period, total rental expense under that certain Master
Lease Agreement, dated December 30, 1996, among Brush Xxxxxxx, Inc., National
City Bank and certain participants.
5
"Consolidated Fixed Charges" means, with reference to any period,
without duplication, Consolidated Interest Expense to the extent paid in cash
during such period, plus scheduled principal payments on Indebtedness made
during such period, plus Capitalized Lease payments made during such period, all
calculated for the Company and its Subsidiaries on a consolidated basis.
"Consolidated Funded Debt" means all Indebtedness for borrowed money
and Capitalized Leases, including, without limitation, current, long-term and
Subordinated Indebtedness, for the Company and its Subsidiaries on a
consolidated basis; provided that, for purposes of this definition, obligations
under the following will not be considered in calculating Consolidated Funded
Debt: (a) obligations under Rate Management Transactions, (b) Permitted Precious
Metals Agreements, (c) the Kazakhstan Contract, and (d) Indebtedness under any
Sale and Leaseback Transaction.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense of the Company and its Subsidiaries calculated on a
consolidated basis for such period (but not including any up-front fees paid in
connection with this Agreement or the Guggenheim Debt Documents).
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Company and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Tax Expense" means, with reference to any period, the tax
expense of the Company and its Subsidiaries calculated on a consolidated basis
for such period.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Conversion/Continuation Notice" is defined in Section 2.7.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with a Loan Party or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Copyrights" shall have the meaning given to such term in the Security
Agreement.
"Credit Exposure" means, with respect to any Lender, its Domestic
Revolving Exposure and Singapore Exposure, as the context may require.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Deposit Account Control Agreement" means an agreement, in form and
substance satisfactory to the Agent, among any Loan Party, a banking institution
holding such Loan Party's funds, and the Agent with respect to collection and
control of all deposits and balances held in a deposit account maintained by any
Loan Party with such banking institution.
6
"Document" shall have the meaning given to such term in the Security
Agreement.
"Dollar" and the sign "$" mean lawful money of the United States of
America.
"Dollar Equivalent" means (a) with respect to any Singapore Revolving
Loan or Protective Advance made by the Singapore Correspondent Lender, the
amount denominated in Singapore Dollars as of any date of determination, that
could be purchased with the amount of Dollars at the most favorable spot
exchange rate quoted by the Agent at approximately 11:00 a.m. (Chicago time) on
such date, and (b) with respect to any other amount, if such amount is
determined in Dollars, then such amount in Dollars and, if such amount is not
determined in Dollars, the Dollar equivalent of such amount, determined by the
Agent on the basis of its spot rate at 11:00 a.m. (Chicago time) on the date for
which the Dollar equivalent amount of such amount is being determined.
"Domestic Availability" means, at any time, an amount equal to (a) the
Domestic Maximum Borrowing Amount, minus (b) the Aggregate Domestic Revolving
Exposure.
"Domestic Borrowers" means, collectively, Brush Engineered Materials
Inc., Brush Xxxxxxx Inc., BEM Services, Inc., Brush Ceramic Products, Inc.,
Brush International, Inc., Xxxxxxxx Advanced Materials Inc., Xxxxxxxx
Acquisition LLC, Technical Materials, Inc., Brush Resources Inc., Zentrix
Technologies Inc., and Circuits Processing Technology, Inc., and their
respective successors and assigns.
"Domestic Borrowing Base" means, at any time, with respect to each
Domestic Borrower, the sum of (a) up to 85% of such Borrower's Eligible Accounts
at such time, plus (b) 85% of the Net Orderly Liquidation Value of such
Borrower's Eligible Inventory, plus (c) an amount equal to (i) $5,000,000 minus
(ii) (A) $416,666.67 multiplied by (B) the number of whole months that have
elapsed since the Closing Date; provided that the amount calculated pursuant to
this clause (c) shall not be less than $0; provided further that this clause (c)
shall apply only to the Aggregate Domestic Borrowing Base, minus (d) Reserves
related to such Borrower. The Agent may, in its Permitted Discretion, reduce the
advance rates set forth above or reduce one or more of the other elements used
in computing the Domestic Borrowing Base.
"Domestic Commitment" means, for each Domestic Lender, the obligation
of such Lender to make Domestic Loans and to participate in LC Obligations in an
aggregate amount not exceeding the amount set forth in the Commitment Schedule
or as set forth in any Assignment Agreement that has become effective pursuant
to Section 12.3(a), as such amount may be modified from time to time pursuant to
the terms hereof.
"Domestic Credit Exposure" means, as to any Domestic Lender, at any
time, the sum of (a) the aggregate principal amount of its Domestic Loans (other
than the Export-Import Loan) outstanding at such time, plus (b) an amount equal
to its Pro Rata Share of any LC Obligations outstanding at such time, plus (c)
an amount equal to its Pro Rata Share, if any, of the aggregate principal amount
of Non-Ratable Loans, Protective Advances, and Overadvances outstanding at such
time, plus, (d) if the Domestic Lender is a Non-Participating Lender, an amount
equal to its Pro Rata Share of the aggregate principal amount of the Singapore
Revolving Loans and the Protective Advances made by the Singapore Correspondent
Lender, in each case, outstanding at such time; provided that, for purposes of
determining Aggregate Credit Exposure, subpart (d) above shall not be included
in the calculation of Domestic Credit Exposure.
"Domestic Floating Rate Advance" means an Advance which, except as
otherwise provided in Section 2.12, bears interest at the Floating Rate.
"Domestic Floating Rate Loan" means a Loan which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Domestic Lenders" means each Lender other than the Singapore Lenders,
and their respective successors and assigns.
7
"Domestic Loan Parties" means the Domestic Borrowers and any Domestic
Subsidiary that after the date of this Agreement is added as a party to this
Agreement by a Joinder Agreement, and "Domestic Loan Party" means any one of
them.
"Domestic Loans" means, with respect to a Domestic Lender, such
Lender's loans made pursuant to Article II (or any conversion or continuation
thereof), including Non-Ratable Loans, Overadvances, Protective Advances, and
the Export-Import Loan.
"Domestic Maximum Borrowing Amount" means, at any time, an amount equal
to the lesser of (i) the Aggregate Revolving Commitment minus all Reserves then
in effect related to the Domestic Loan Parties (without duplication of Reserves
used in calculating the Aggregate Domestic Borrowing Base (to the extent such
Reserves are applicable to the calculation in this clause (i)), or (ii) the
Aggregate Domestic Borrowing Base.
"Domestic Revolving Commitment" means as to any Domestic Lender, the
aggregate commitment of such Lender to make Domestic Revolving Loans or incur LC
Obligations as set forth in the Commitment Schedule or in the most recent
Assignment Agreement that has become effective pursuant to Section 12.3(a).
"Domestic Revolving Exposure" means, as to any Domestic Lender at any
time, the sum of (a) the aggregate principal amount of its Domestic Revolving
Loans (other than the Export-Import Loan) outstanding at such time, plus (b) an
amount equal to its Pro Rata Share of any LC Obligations outstanding at such
time, plus (c) an amount equal to its Pro Rata Share of the aggregate principal
amount of Non-Ratable Loans, Protective Advances, and Overadvances outstanding
at such time, plus, (d) if the Domestic Lender is a Non-Participating Lender, an
amount equal to its Pro Rata Share of the aggregate principal amount of the
Singapore Revolving Loans and the Protective Advances made by the Singapore
Correspondent Lender, in each case, outstanding at such time; provided that, for
purposes of determining Availability and Aggregate Revolving Exposure, subpart
(d) above shall not be included in the calculation of Domestic Revolving
Exposure.
"Domestic Revolving Loans" means the revolving loans extended by the
Domestic Lenders to the Domestic Borrowers pursuant to Section 2.1.1 and 2.27
hereof.
"Domestic Revolving Note" is defined in Section 2.21(d).
"Domestic Subsidiary" means any Subsidiary which is organized under the
laws of the U.S. or any state of the U.S.
"Eligible Accounts" means, at any time, the Accounts of a Loan Party
that the Agent determines in its Permitted Discretion are eligible as the basis
for Credit Extensions hereunder. Without limiting the Agent's discretion
provided herein, Eligible Accounts shall not include any Account:
(a) which is not subject to a first priority perfected
security interest for the benefit of the Applicable Agent and Lenders;
(b) which is subject to any Lien other than (i) Liens for
the benefit of the Applicable Agent and Lenders and (ii) a Permitted
Lien which does not have priority over the Liens for the benefit of the
Applicable Agent and Lenders (without limiting the generality of this
subparagraph (b), the parties hereto acknowledge and agree that no
Account of Xxxxxxxx Advanced Materials, Inc. that is, or any portion
thereof is, subject to a Lien with priority over the Liens granted for
the benefit of the Applicable Agent and Lenders shall be an Eligible
Account unless and until such Lien is terminated or subordinated to the
Liens for the benefit of the Agent and the Lenders in a manner
satisfactory to the Agent);
8
(c) which remains unpaid more than 90 days after the
original invoice date;
(d) which is owing by an Account Debtor to a Loan Party
for which more than 25% of the Accounts owing from such Account Debtor
to that Loan Party are ineligible hereunder;
(e) which is owing by an Account Debtor to a Loan Party
to the extent the aggregate amount of Eligible Accounts owing from such
Account Debtor to such Loan Party exceeds 15% of the aggregate Eligible
Accounts;
(f) with respect to which any covenant, representation,
or warranty contained in this Agreement or in the Security Agreement
has been breached or is not true;
(g) which (i) does not arise from the sale of goods or
performance of services in the ordinary course of business, (ii) is not
evidenced by an invoice or other documentation reasonably satisfactory
to the Agent which has been sent to the Account Debtor, (iii)
represents a progress billing, (iv) is contingent upon such Loan
Party's completion of any further performance, or (v) represents a sale
on a xxxx-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment, cash-on-delivery or any other repurchase or return basis;
(h) for which the goods giving rise to such Account have
not been shipped to the Account Debtor or for which the services giving
rise to such Account have not been performed by such Loan Party;
(i) with respect to which any check or other instrument
of payment has been returned uncollected for any reason;
(j) which is owed by an Account Debtor which has (i)
applied for, suffered, or consented to the appointment of any receiver,
custodian, trustee, or liquidator of its assets, (ii) has had
possession of all or a material part of its property taken by any
receiver, custodian, trustee or liquidator, (iii) filed, or had filed
against it, any request or petition for liquidation, reorganization,
arrangement, adjustment of debts, adjudication as bankrupt, winding-up,
or voluntary or involuntary case under any state or federal bankruptcy
laws, (iv) has admitted in writing its inability, or is generally
unable to, pay its debts as they become due, (v) become insolvent, or
(vi) ceased operation of its business;
(k) which is owed by an Account Debtor that (i) does not
maintain its chief executive office in the U.S., Canada (unless such
chief executive office is in Quebec or Newfoundland in which case, such
Account from such Account Debtor shall not be an Eligible Account), or
Singapore; or (ii) is not organized under the applicable laws of the
U.S., Canada (other than Quebec or Newfoundland, in which case, such
Account from such Account Debtor shall not be an Eligible Account), any
state of the U.S. or Singapore, unless, in each case, such Account is
backed by a Letter of Credit acceptable to the Agent which is in the
possession of the Agent;
(l) which is owed in any currency other than Dollars or
Singapore Dollars;
(m) which is owed by (i) the government (or any
department, agency, public corporation, or instrumentality thereof) of
any country other than the U.S. unless such Account is backed by a
Letter of Credit acceptable to the Agent which is in the possession of
the Agent, or (ii) the government of the U.S., or any department,
agency, public corporation, or instrumentality thereof, unless the
Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. Section
3727 et seq. and 41 U.S.C. Section 15 et seq.), and any other steps
necessary to perfect the Liens for the benefit of the Applicable Agent
and Lenders in such Account have been complied with to the Agent's
satisfaction;
9
(n) which is owed by any Affiliate, employee, or director
of any Loan Party;
(o) which, for any Account Debtor, exceeds a credit limit
determined by the Agent, in its Permitted Discretion, to the extent of
such excess;
(p) which is owed by an Account Debtor or any Affiliate
of such Account Debtor to which any Loan Party is indebted, but only to
the extent of such indebtedness;
(q) which is subject to any counterclaim, deduction,
defense, setoff or dispute, but only to the extent of such
counterclaim, deduction, defense, setoff or dispute;
(r) which is evidenced by any promissory note, chattel
paper, or instrument;
(s) which is owed by an Account Debtor located in any
jurisdiction which requires filing of a "Notice of Business Activities
Report" or other similar report in order to permit such Loan Party to
seek judicial enforcement in such jurisdiction of payment of such
Account, unless such Loan Party has filed such report or qualified to
do business in such jurisdiction;
(t) with respect to which such Loan Party has made any
agreement with the Account Debtor for any reduction thereof, other than
discounts and adjustments given in the ordinary course of business; or
(u) which the Agent determines in its Permitted
Discretion may not be paid by reason of the Account Debtor's inability
to pay.
In the event that an Account which was previously an Eligible Account ceases to
be an Eligible Account hereunder (other than as a result of the Agent's
determination or due to the payment of such Account), the Company shall notify
the Agent thereof (i) within three (3) Business Days of the date the Company has
obtained knowledge thereof if any such Account is in excess of $500,000 in the
aggregate and (ii) on and at the time of submission to the Agent of the next
Aggregate Borrowing Base Certificate in all other cases.
"Eligible Inventory" means, at any time, the Inventory of a Loan Party
that the Agent determines in its Permitted Discretion is eligible as the basis
for Credit Extensions hereunder. Without limiting the Agent's discretion
provided herein, Eligible Inventory shall not include any Inventory:
(a) which is not subject to a first priority perfected
security interest for the benefit of the Applicable Agent and Lenders;
(b) which is subject to any Lien other than (i) Liens for
the benefit, of the Applicable Agent and Lenders and (ii) a Permitted
Lien which does not have priority over the Liens for the benefit of the
Applicable Agent and Lenders (without limiting the generality of this
subparagraph (b), the parties hereto acknowledge and agree that no
Inventory of Xxxxxxxx Advanced Materials, Inc. that is, or any portion
thereof is, subject to a Lien with priority over the Liens granted for
the benefit of the Applicable Agent and Lenders shall be Eligible
Inventory unless and until such Lien is terminated or subordinated to
the Liens for the benefit of the Agent and the Lenders in a manner
satisfactory to the Agent);
(c) which is, in the Agent's reasonable opinion, slow
moving, obsolete, unmerchantable, defective, unfit for sale, not
salable at prices approximating at least the cost of such Inventory in
the ordinary course of business or unacceptable due to age, type,
category and/or quantity;
10
(d) with respect to which any covenant, representation,
or warranty contained in this Agreement or the Security Agreement has
been breached or is not true;
(e) which does not conform to all material standards
imposed by any governmental authority;
(f) which constitutes work-in-process, raw materials
containing or consisting of bertrandite ore, spare or replacement
parts, subassemblies, packaging and shipping material, manufacturing
supplies, display items, xxxx-and-hold goods, returned or repossessed
goods, defective goods, goods held on consignment, or goods which are
not of a type held for sale in the ordinary course of business;
(g) which is not located in the U.S. or is in transit
with a common carrier from vendors and suppliers, provided that,
Inventory in transit may be included as eligible despite this clause
(g) so long as (i) the Agent shall have received (A) a true and correct
copy of the non-negotiable xxxx of lading and other shipping documents
for such Inventory, (B) evidence that such Inventory is insured
pursuant to casualty insurance naming the Agent as loss payee and
otherwise covering such risks as the Agent may reasonably request, and
(C) such other duly executed documents as reasonably requested by the
Agent for such Inventory and (ii) the common carrier is not an
Affiliate of the applicable vendor or supplier;
(h) which is located in any location leased by such Loan
Party unless (i) the lessor has delivered to the Agent a Collateral
Access Agreement or, with respect to any such location for which the
Agent does not receive a Collateral Access Agreement the Inventory
located there will continue to be Eligible Inventory, but the Agent
shall establish a Reserve in an amount equal to three (3) months rent
for such location; provided, however, that with respect to Inventory
located at a leased location for which the Agent shall not have
received a Collateral Access Agreement on the Closing Date, such
Inventory shall be Eligible Inventory under this subpart (h) for a
period of 90 days after the Closing Date;
(i) which is located in any third party warehouse or is
in the possession of a bailee and is not evidenced by a Document (other
than non-negotiable bills of lading to the extent permitted pursuant to
clause (g) above), unless such warehouseman or bailee has delivered to
the Agent a Collateral Access Agreement and such other documentation as
the Agent may reasonably require;
(j) which is the subject of a consignment by such Loan
Party as consignor;
(k) which contains or bears any Intellectual Property
Rights licensed to such Loan Party unless the Agent is satisfied that
it may sell or otherwise dispose of such Inventory without (i)
infringing the rights of such licensor, (ii) violating any contract
with such licensor, or (iii) incurring any liability with respect to
payment of royalties other than royalties incurred pursuant to sale of
such Inventory under the current licensing agreement;
(l) which is not reflected in a current perpetual
inventory report of a Loan Party (unless such Inventory is reflected in
an acceptable separate report to the Agent as "in transit" Inventory);
or
(m) which the Agent otherwise determines in its Permitted
Discretion is unacceptable.
In the event that Inventory which was previously Eligible Inventory ceases to be
Eligible Inventory hereunder (other than as a result of the Agent's
determination), the Company shall notify the Agent thereof (i) within three (3)
Business Days of the date the Company has obtained knowledge thereof if any such
Inventory has a value (based on the lower of cost, determined on a first-in,
first-out basis, or market) in
11
excess of $500,000 in the aggregate and (ii) on and at the time of submission to
the Agent of the next Aggregate Borrowing Base Certificate in all other cases.
"Environmental Laws" means any and all federal, state, provincial,
local and foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, orders, decrees, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other legally enforceable
governmental restrictions relating to (a) the protection of the environment from
pollutants, contaminants, hazardous substances or wastes, (b) the effect of
pollutants, contaminants, hazardous substances or wastes on human health, (c)
emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (d) the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"Equipment" has the meaning specified in the Security Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974 (or
any successor legislation thereto), as amended from time to time, and any rule
or regulation issued thereunder.
"ERISA Plan" means each "employee benefit plan" (within the meaning of
ERISA Section 3(3)) that a Loan Party or any member of its Controlled Group at
any time sponsors, maintains, contributes to, has liability with respect to or
has an obligation to contribute to such plan.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association LIBOR
rate for deposits in Dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which Bank One or one of its Affiliate banks offers to place
deposits in Dollars with first-class banks in the interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of the subject Eurodollar
Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base
Rate applicable to such Interest Period, divided by (ii) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(b) the Applicable Margin.
"Export-Import Collateral" means the Collateral as defined in the
Export Loan Agreement by and between Bank One, NA and the Domestic Borrowers.
"Export-Import Loan" means a revolving credit facility provided by Bank
One, NA to the Domestic Borrowers in the maximum amount of $7,500,000, as
described in more detail in the Export-Import Loan Documents.
"Export-Import Loan Documents" means this Agreement and the following
documents, each of which shall be in form and substance reasonably acceptable to
the Domestic Borrowers: an Export-Import
00
Xxxx xx xxx Xxxxxx Xxxxxx Working Capital Guarantee Program Borrower Agreement,
an Export Loan Agreement, a Loan Authorization Notice, an Intracreditor
Subordination and Confirmation, an Intercreditor Subordination and Confirmation,
an Export-Import Revolving Note, and any and all other documents as may be
requested by the Agent in connection with the Export-Import Loan.
"Export-Import Revolving Note" has the meaning set forth in the
Export-Import Loan Documents.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall revenue or net
income, and franchise taxes imposed on it, by (a) the jurisdiction under the
laws of which such Lender or the Agent is incorporated, organized or doing
business or (b) the jurisdiction in which the Agent's or such Lender's principal
executive office or such Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility" means the credit facility described in Section 2.1 hereof to
be provided to the Borrowers on the terms and conditions set forth in this
Agreement.
"Facility LC" is defined in Section 2.1.2(a).
"Facility LC Application" is defined in Section 2.1.2(c).
"Facility LC Collateral Account" is defined in Section 2.1.2(j).
"Facility Termination Date" means December 3, 2008 or any earlier date
on which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fee Letter" is defined in Section 2.10(c).
"Financial Contract" of a Person means (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (b) any Rate Management Transaction.
"Fiscal Month" means any of the monthly accounting periods of the
Company.
"Fiscal Quarter" means any of the quarterly accounting periods of the
Company.
"Fiscal Year" means any of the annual accounting periods of the Company
ending on December 31st of each year.
"Fixed Charge Coverage Ratio" means, the ratio, determined as of the
end of each Fiscal Quarter of the Company for the then most-recently ended four
Fiscal Quarters of (a) Consolidated EBITDA, minus cash taxes paid, minus the
unfinanced portion of Consolidated Capital Expenditures, minus cash dividends,
plus cash tax refunds to (b) Consolidated Fixed Charges, all calculated for the
Company and its Subsidiaries on a consolidated basis. Notwithstanding the
foregoing, for the Fixed Charge Coverage Ratio, the Company shall
13
use Consolidated EBITDAR instead of Consolidated EBITDA in its financial
statements for the period up to and including December 4, 2003 for the basis of
such calculations.
"Fixed Rate Advances" means Eurodollar Advances and Singapore Fixed
Rate Advances.
"Fixed Rate Loans" means Eurodollar Loans and Singapore Fixed Rate
Loans.
"Fixture" has the meaning specified in the Security Agreement.
"Floating Rate" means, for any day, a rate per annum equal to (a) the
Alternate Base Rate for such day plus (b) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advances" means Singapore Floating Rate Advances and
Domestic Floating Rate Advances.
"Floating Rate Loans" means Singapore Floating Rate Loans and Domestic
Floating Rate Loans.
"Foreign Collateral Documents" means, collectively, the documents
granting a Lien upon the Collateral of the Singapore Loan Parties as security
for payment of the Singapore Obligations.
"Foreign Subsidiary" means any Subsidiary which is not a Domestic
Subsidiary.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funding Account" means a deposit account of (a) BEM Services Inc.
maintained with the Agent, and (b) the Singapore Borrower maintained with the
Singapore Correspondent Lender in Singapore, in which the Agent or the Singapore
Lenders, as the case may be, are authorized by such Borrower to deposit the
proceeds of Loans.
"GAAP" means U.S. generally accepted accounting principles as in effect
from time to time, applied in a manner consistent with that used in preparing
the financial statements referred to in Section 5.5.
"Guaranteed Obligations" is defined in Section 15.1.
"Guarantor" means each Loan Party (other than the Borrowers) and any
other Person who becomes a party to the Guaranty pursuant to a Joinder
Agreement, together with their respective successors and assigns.
"Guaranty" means Article XV of this Agreement and each separate
guaranty, if any, in form and substance satisfactory to the Agent, delivered by
each Guarantor that is a Foreign Subsidiary (which guaranty shall be governed by
the laws of the country in which such Foreign Subsidiary is located), in each
case, as it may be amended or modified and in effect from time to time.
"Guggenheim" means Guggenheim Corporate Funding, LLC, or any successor
provider of the Guggenheim Debt.
"Guggenheim Debt" means the Indebtedness of the Company to Guggenheim
in an original principal amount equal to $35,000,000 (together with capitalized
interest, fees, and other costs) incurred pursuant to the terms of the
Guggenheim Debt Documents.
"Guggenheim Debt Documents" means that certain Loan Agreement, dated as
of December 4, 2003, among the Company, as borrower, the guarantors party
thereto, and Guggenheim, as lender, and all other
14
documents, agreements and instruments that evidence, secure, guarantee or are
otherwise executed and delivered by a Loan Party in connection with the
Guggenheim Debt, in each case as they now exist or may be amended, modified,
supplemented, extended, replaced, renewed, refinanced or restored in accordance
with that certain Intercreditor Agreement by and between the Agent, in its
capacity as agent for the Lenders, and Guggenheim, in it capacity as collateral
agent for the Guggenheim Lenders (as defined therein).
"Indebtedness" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens or payable out
of the proceeds or production from Property now or hereafter owned or acquired
by such Person, (d) obligations which are evidenced by notes, acceptances, or
other instruments, (e) obligations of such Person to purchase securities or
other Property arising out of or in connection with the sale of the same or
substantially similar securities or Property or any other Off-Balance Sheet
Liabilities, (f) Capitalized Lease Obligations, (g) Contingent Obligations for
which the underlying transaction constitutes Indebtedness under this definition,
(h) the stated face amount of all letters of credit or bankers' acceptances
issued for the account of such Person and, without duplication, all
reimbursement obligations with respect to such issued letters of credit, (i) any
and all obligations, contingent or otherwise, whether now existing or hereafter
arising, under or in connection with Rate Management Transactions, including,
without limitation, Net Xxxx-to-Market Exposure, and (j) obligations of such
Person under any Sale and Leaseback Transaction.
"Intellectual Property Rights" means, with respect to any Person, all
of such Person's Patents, Copyrights, Trademarks, and Licenses, all other rights
under any of the foregoing, all extensions, renewals, reissues, divisions,
continuations and continuations-in-part of any of the foregoing, and all rights
to xxx for past, present, and future infringement of any of the foregoing.
"Intercompany Notes" is defined in Section 6.16(e).
"Intercreditor Agreements" means (a) that certain Intercreditor
Agreement dated as of the Closing Date by and between the Agent, on behalf of
itself and the Lenders, and Guggenheim Corporate Funding, LLC, (b) that certain
Intercreditor Agreement dated as of the Closing Date by and among the Agent, on
behalf of itself and the Lenders, and The Bank of Nova Scotia, and (c) every
other intercreditor agreement related to the Loans entered into by the Agent, on
behalf of itself and the other Lenders, on or after the Closing Date.
"Interest Period" means, with respect to a Eurodollar Advance or a
Singapore Fixed Rate Loan, a period of one, two, three or six months commencing
on a Business Day selected by the Company pursuant to this Agreement. Such
Interest Period shall end on the day which corresponds numerically to such date
one, two, three or six months thereafter, provided however, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"Inventory" has the meaning specified in the Security Agreement.
"Investment" of a Person means any (a) loan or advance, (b) extension
of credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade), (c) contribution of capital by such
Person, (d) stocks, bonds, mutual funds, partnership interests, notes,
debentures, securities or other Capital Stock owned by such Person, (e) any
deposit accounts and certificate of deposit owned by such Person, and (f)
structured notes, derivative financial instruments and other similar instruments
or contracts owned by such Person.
15
"Joinder Agreement" is defined in Section 6.14(a).
"Judgment Amount" is defined in Section 9.14.
"Kazakhstan Contract" means that certain agreement, dated as of
December 21, 1999, among Brush Xxxxxxx Inc., Kazatomprom, Ulba Metallurgical
Plant, and NUKEM, Inc. as amended from time to time, but only to the extent that
the Dollar Equivalent of any Indebtedness related thereto does not exceed
$9,000,000 during any consecutive 12-month period.
"LC Fee" is defined in Section 2.10(b).
"LC Issuer" means Bank One (or any subsidiary or Affiliate of Bank One
designated by Bank One) in its capacity as an issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(a) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (b) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.1.2(d).
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender, the LC Issuer
or the Agent, the office, branch, subsidiary or Affiliate of such Lender, LC
Issuer or the Agent listed on the signature pages hereof or on a Schedule or
otherwise selected by such Lender, the LC Issuer or the Agent pursuant to
Section 2.22 which, in the case of a Singapore Lender, shall be located in
Singapore.
"Letter of Credit" of a Person means a standby or commercial letter of
credit or similar instrument which is issued upon the application of such Person
or upon which such Person is an account party or for which such Person is in any
way liable.
"Leverage Ratio" means, the ratio, determined as of the end of each
Fiscal Quarter of the Company for the then most-recently ended four Fiscal
Quarters of (a) Consolidated Funded Debt to (b) Consolidated EBITDA.
Notwithstanding the foregoing, for the Leverage Ratio calculations that require
the Company to include financial information from any Fiscal Quarter occurring
in 2003, the Company shall use Consolidated EBITDAR instead of Consolidated
EBITDA for such calculation.
"Licenses" has the meaning given to such term in the Security
Agreement.
"Lien" means any lien (statutory or other), mortgage, security
interest, pledge, hypothecation, assignment, deposit arrangement, encumbrance or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"Loan Documents" means this Agreement, any Notes, the Facility LC
Applications, the Collateral Documents, the Guaranty, the Export-Import Loan
Documents, the Intercreditor Agreements and all other agreements, instruments,
documents and certificates identified in Section 4.1 executed and delivered to,
or in favor of, Agent or any Lenders and including all other pledges, powers of
attorney, consents, assignments, contracts, notices, letter of credit agreements
and all other written matter whether heretofore, now or hereafter executed by or
on behalf of any Loan Party, or any Authorized Officer of any Loan Party, and
delivered to the Agent or any Lender in connection with the Agreement or the
transactions contemplated
16
thereby. Any reference in the Agreement or any other Loan Document to a Loan
Document shall include all appendices, exhibits or schedules thereto, and all
amendments, restatements, supplements or other modifications thereto, and shall
refer to the Agreement or such Loan Document as the same may be in effect at any
and all times such reference becomes operative.
"Loan Parties" means the Domestic Loan Parties, the Singapore Loan
Parties, and any other Person who becomes a party to this Agreement pursuant to
a Joinder Agreement, and "Loan Party" means any one of them.
"Loans" means, with respect to a Lender, such Lender's loans made
pursuant to Article II (or any conversion or continuation thereof), including
Non-Ratable Loans, Overadvances, Protective Advances, and the Export-Import
Loan.
"Loss" is defined in Section 9.14.
"Material Adverse Effect" means a material adverse effect on (a) the
business, Property, condition (financial or otherwise), or results of operations
of the Company and its Subsidiaries taken as a whole, (b) the ability of any
Loan Party to perform its material obligations under the Loan Documents to which
it is a party, (c) a material portion of the Collateral, or the Agent's Liens
(on behalf of itself and the Lenders) on the Collateral or the priority of such
Liens or (d) the validity or enforceability of any of the Loan Documents or the
rights or remedies of the Agent, the LC Issuer or the Lenders thereunder.
"Material Indebtedness" means Indebtedness in an outstanding principal
amount of $5,000,000 or more in the aggregate (or the equivalent thereof in any
currency other than Dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
"Maximum Borrowing Amount" means, at any time, an amount equal to the
lesser of (i) the Aggregate Revolving Commitment minus all Reserves then in
effect (without duplication of Reserves used in calculating the Aggregate
Borrowing Base (to the extent such Reserves are applicable to the calculation in
this clause (i)), or (ii) the Aggregate Borrowing Base.
"Modify" and "Modification" are defined in Section 2.1.2(a).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgages" means any mortgage, deed of trust or other agreement which
conveys or evidences a Lien, for the benefit of the Agent and the Domestic
Lenders, on real Property of a Domestic Loan Party, including any amendment,
modification or supplement thereto.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which a Loan Party or any member of a Controlled Group is
a party or which it is obligated to make contributions.
"Net Cash Proceeds" means, if in connection with (a) an asset
disposition by any Domestic Loan Party, cash proceeds actually received by a
Loan Party net of (i) commissions and other reasonable and customary transaction
costs, fees and expenses properly attributable to such transaction and payable
by such Loan Party in connection therewith (in each case, paid to
non-Affiliates), (ii) transfer taxes, (iii) amounts payable to holders of
Permitted Liens on such asset), if any, and (iv) an appropriate reserve for
income taxes in accordance with GAAP established in connection therewith; (b)
the issuance or incurrence of
17
Indebtedness, cash proceeds actually received by a Loan Party net of attorneys'
fees, investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith; or (c) an equity issuance, cash proceeds actually received
by a Loan Party net of underwriting discounts and commissions and other
reasonable costs paid to non-Affiliates in connection therewith.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. As used in
this definition, "unrealized losses" means the fair market value of the cost to
such Person of replacing such Rate Management Transaction as of the date of
determination (assuming the Rate Management Transaction were to be terminated as
of that date), and "unrealized profits" means the fair market value of the gain
to such Person of replacing such Rate Management Transaction as of the date of
determination (assuming such Rate Management Transaction were to be terminated
as of that date).
"Net Orderly Liquidation Value" means, with respect to Inventory or
Equipment of any Person, the orderly liquidation value thereof as determined in
a manner acceptable to the Agent in its Permitted Discretion by an appraiser
acceptable to the Agent in its Permitted Discretion, net of all costs of
liquidation thereof.
"Non-Participating Lender" is defined in Section 2.2.
"Non-Paying Guarantor" is defined in Section 15.11.
"Non-Ratable Loan" and "Non-Ratable Loans" are defined in Section
2.1.3.
"Non-U.S. Borrower" is defined in Section 3.2(b).
"Non-U.S. Lender" is defined in Section 3.5(d).
"Notes" means the Domestic Revolving Notes, the Singapore Revolving
Notes, the Export-Import Revolving Note, the Term Notes, and the Substitute
Note.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all LC Obligations, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Loan Parties
to the Lenders or to any Lender, the Agent, the Singapore Correspondent Lender,
the LC Issuer or any indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (a) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (b) any indebtedness, liability or obligation
under any Sale and Leaseback Transaction to which such Person is a party which
is not a Capitalized Lease, (c) any indebtedness, liability or obligation under
any so-called "synthetic lease" transaction entered into by such Person, or (d)
any indebtedness, liability or obligation arising with respect to any other
transaction to which such Person is a party which is the functional equivalent
of or takes the place of borrowing but which does not constitute a liability on
the balance sheets of such Person, but excluding obligations with respect to
Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Operating Lease Obligations" means, as at any date of determination,
the amount obtained by aggregating the present values, determined in the case of
each particular Operating Lease by applying a discount rate (which discount rate
shall equal the discount rate which would be applied under GAAP if such
18
Operating Lease were a Capitalized Lease) from the date on which each fixed
lease payment is due under such Operating Lease to such date of determination,
of all fixed lease payments due under all Operating Leases of the Company and
its Subsidiaries.
"Original Due Date" is defined in Section 9.14.
"Other Taxes" is defined in Section 3.5(b).
"Overadvances" is defined in Section 2.1.4(b).
"Participants" is defined in Section 12.2(a).
"Participating Lender" is defined in Section 2.2.
"Patents" has the meaning given to such term in the Security Agreement.
"Paying Guarantor" is defined in Section 15.11.
"Payment Date" means (a) with respect to interest payments due on any
Floating Rate Loan, the first day of each Fiscal Month and the Facility
Termination Date; (b) with respect to interest payments due on any Fixed Rate
Loan, (i) the last day of the applicable Interest Period, and (ii) in the case
of any Interest Period in excess of three months, the day which is three months
after the first day of such Interest Period, and (iii) the Facility Termination
Date; and (c) with respect to any payment of LC Fees or Unused Commitment Fees,
the first day of each Fiscal Quarter and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Discretion" means a determination made in good faith and in
the exercise of reasonable (from the perspective of a secured asset-based
lender) business judgment.
"Permitted Liens" is defined in Section 6.21.
"Permitted Precious Metals Agreements" means precious metals agreements
and arrangements (whether styled as debt, a lease, a consignment or otherwise)
entered into from time to time by any Loan Party, but only to the extent that
the aggregate Dollar Equivalent of the precious metals subject thereto does not
exceed $60,000,000. For purposes of this definition, "precious metals" shall
include, without limitation, gold, silver, platinum, palladium and copper (even
though copper is not generally deemed to be a precious metal).
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which a Loan Party or any member of a Controlled Group may have any
liability.
"Prepayment Fee" is defined in Section 2.16(b).
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when
19
and as said prime rate changes. In the event that there is a successor to the
Agent by merger, or the Agent assigns its duties and obligations to an Affiliate
pursuant to Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new Agent.
"Prior Agreements" is defined in Section 4.1(j).
"Projections" is defined in Section 6.1(d).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person; other assets owned by
such Person; and to the extent of such Person's interest therein, other assets
leased or operated by such Person.
"Pro Rata Share" means, as to any Lender, (a) with respect to the
Aggregate Revolving Commitment or Aggregate Revolving Exposure (including, in
each case, without limitation, Domestic Revolving Loans, Facility LC's,
Non-Ratable Loans, Protective Advances, and Overadvances), a fraction expressed
as a percentage, the numerator of which is such Lender's Domestic Revolving
Commitment and the denominator of which is the Aggregate Revolving Commitment,
(b) with respect to Term A Loans, a fraction expressed as a percentage, the
numerator of which is such Lender's outstanding principal amount of the Term A
Loan and the denominator of which is the aggregate outstanding amount of the
Term A Loans of all of the Lenders; (c) with respect to Term B Loans, a
fraction, expressed as a percentage, the numerator of which is such Lender's
outstanding principal amount of the Term B Loan and the denominator of which is
the aggregate outstanding amount of the Term B Loans of all of the Lenders; and
(d) with respect to the Aggregate Singapore Commitment or the Aggregate
Singapore Exposure, a percentage equal to a fraction the numerator of which is
such Lender's Singapore Commitment and the denominator of which is the Aggregate
Singapore Commitment.
"Protective Advances" is defined in Section 2.1.4(a).
"Purchasers" is defined in Section 12.3(a).
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Rate
Management Transactions, and (b) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by any
Loan Party which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Register" is defined in Section 12.3(d).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
20
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Domestic Borrowers then outstanding under Section 2.1.2 to
reimburse the LC Issuer for amounts paid by the LC Issuer in respect of any one
or more drawings under Facility LCs.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within thirty
days of the occurrence of such event, provided however, that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section 302 of
ERISA shall be a Reportable Event regardless of the issuance of any such waiver
of the notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Reports" is defined in Section 9.6(a)(i).
"Required Lenders" means the Domestic Lenders in the aggregate having
at least 66-2/3% of the Aggregate Commitment or, if the Aggregate Commitment has
been terminated, the Domestic Lenders in the aggregate holding at least 66-2/3%
of the Aggregate Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Reserves" means any and all reserves which the Agent deems necessary,
without duplication of any other reserve or adjustment made under the definition
of Eligible Accounts or Eligible Inventory, in its Permitted Discretion, to
maintain (including, without limitation, reserves for accrued and unpaid
interest on the Secured Obligations, Banking Services Reserves, reserves for
rent at locations leased by any Loan Party in accordance with Subsection (h) of
the definition of Eligible Inventory and for consignee's, warehousemen's, and
bailee's charges, reserves for dilution of Accounts, reserves for Inventory
shrinkage, reserves for customs charges and shipping charges related to any
Inventory in transit, reserves for Rate Management Transactions, reserves for
contingent liabilities of any Loan Party, reserves for uninsured losses of any
Loan Party, and reserves for taxes, fees, assessments, and other governmental
charges) with respect to the Collateral or any Loan Party. Except with respect
to the Term A Loan, "Reserves" shall not include the Clean-up Reserve.
"Revolving Loans" means the Domestic Revolving Loans and the Singapore
Revolving Loans.
"Risk-Based Capital Guidelines" is defined in Section 3.2(a).
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
21
"Secured Foreign Obligations" means the Singapore Obligations.
"Secured Obligations" means, collectively, (i) the Obligations; (ii)
all Banking Services Obligations; and (iii) all Rate Management Obligations
owing to one or more Lenders, provided that at or prior to the time that any
Rate Management Transaction relating to such Rate Management Obligation is
executed, the Lender party thereto (if other than Bank One) shall have delivered
written notice to the Agent that such a Rate Management Transaction has been
entered into and that it constitutes a Secured Obligation entitled to the
benefits of the Collateral Documents.
"Security Agreement" means that certain Pledge and Security Agreement,
dated as of the date hereof, between the Domestic Loan Parties and the Agent,
for the benefit of the Agent and the Lenders, and any other pledge or security
agreement entered into, after the Closing Date by any other Domestic Loan Party
(as required by this Agreement or any other Loan Document), or any other Person,
as the same may be amended, restated or otherwise modified from time to time.
"Settlement" is defined in Section 2.19(a).
"Settlement Date" is defined in Section 2.19(a).
"Singapore Advance" means a borrowing hereunder (a) made by some or all
of the Singapore Lenders on the same Borrowing Date or (b) converted or
continued by a Singapore Lender on the same date of conversion or continuation,
consisting, in either case, of the aggregate amount of the Singapore Revolving
Loans of the same type and, in the case of the Singapore Fixed Rate Loans, for
the same Interest Period. The term "Singapore Advance" shall include Protective
Advances made by the Singapore Correspondent Lender.
"Singapore Affiliate" means a financial institution organized under the
laws of the Singapore that is affiliated with a Lender.
"Singapore Availability" means, at any time, an amount equal to (a) the
Singapore Maximum Borrowing Amount, minus (b) the Aggregate Singapore Exposure.
"Singapore Base Rate" means the per annum interest rate established
from time to time by Singapore Correspondent Lender as the Singapore
Correspondent Lender's "prime rate" for loans in Singapore Dollars or similar
index, whether or not such rate is publicly announced; the Singapore Base Rate
may not be the lowest interest rate charged by Singapore Correspondent Lender
for commercial or other extensions of credit in Singapore Dollars. Each change
in the Singapore Base Rate shall be effective immediately from and after such
change.
"Singapore Borrower" means Brush Xxxxxxx (Singapore) PTE Ltd.
"Singapore Borrowing Base" means, at any time, with respect to the
Singapore Borrower, up to 85% of such Borrower's Eligible Accounts at such time,
minus Reserves related to such Borrower. The Singapore Borrowing Base shall be
calculated and reported in Dollars; provided that, for the purposes of
calculating the Aggregate Borrowing Base, such amount shall not exceed
$4,000,000. The Agent may, in its Permitted Discretion, reduce the advance rate
set forth above or reduce one or more of the other elements used in computing
the Singapore Borrowing Base.
"Singapore Commitment" means, for each Singapore Lender, the obligation
of such Lender to make Singapore Revolving Loans to the Singapore Borrower in an
aggregate amount not to exceed the amount set forth in the Commitment Schedule
or as set forth in any Assignment Agreement that has become effective pursuant
to Section 12.3(a), as such amount may be modified from time to time pursuant to
the terms hereof.
22
"Singapore Correspondent Lender" means Bank One, Singapore Branch, or
such other financial institution reasonably acceptable to the Company and
organized under the laws of Singapore as may be designated by the Agent from
time to time.
"Singapore Derived Fixed Rate" means a rate per annum equal to the
Singapore Domestic Rate plus the Applicable Margin related to Eurodollar Loans.
"Singapore Derived Floating Rate" means, for any day, a rate per annum
equal to (a) the Singapore Base Rate for such day plus, the Applicable Margin
(for Floating Rate Loans), in each case changing when and as the Singapore Base
Rate changes.
"Singapore Dollar" means the lawful currency of Singapore.
"Singapore Domestic Rate" means, for any Interest Period with respect
to a Singapore Fixed Rate Loan, the per annum rate of interest determined by the
Singapore Correspondent Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) as of approximately
11:00 a.m. (local time) on the date of such Singapore Fixed Rate Loan as
provided by Reuters (or any similar company or service that provides rate
quotations comparable to those currently provided by such companies) as the rate
for Singapore Dollar deposits in immediately available funds with a maturity
comparable to such Interest Period. In the event that such rate quotation is not
available or determinable for any reason, then the rate shall be determined by
the Agent as of approximately 11:00 a.m. (local time) on the date of such
Singapore Fixed Rate Loan, to be the average (rounded upwards, if necessary, to
the nearest one sixteenth of one percent (1/16th of 1%)) of the per annum rates
at which Singapore Dollar deposits in immediately available funds in an amount
comparable to such Singapore Fixed Rate Loan and with a maturity comparable to
such Interest Period are offered to the prime banks by lending banks in the
London interbank market.
"Singapore Exposure" shall mean, with respect to any Singapore Lender,
at any time, the sum of the Dollar Equivalent of the aggregate principal amount
of its Singapore Revolving Loans outstanding, plus an amount equal to its Pro
Rata Share of the Dollar Equivalent of the aggregate principal amount of
Protective Advances made by the Singapore Correspondent Lender and outstanding
at such time.
"Singapore Fixed Rate Advance" shall mean an Advance which, except as
provided in Section 2.12, bears interest at the Singapore Derived Fixed Rate.
"Singapore Fixed Rate Loan" shall mean a Loan which, except as provided
in Section 2.12, bears interest at the Singapore Derived Fixed Rate.
"Singapore Floating Rate Advance" means an Advance which, except as
otherwise provided in Section 2.12, bears interest at the Singapore Derived
Floating Rate.
"Singapore Floating Rate Loan" means a Loan which, except as otherwise
provided in Section 2.12, bears interest at the Singapore Derived Floating Rate.
"Singapore Lenders" means, collectively (a) the Singapore Correspondent
Lender, and (b) the Singapore Affiliate of the Singapore Correspondent Lender;
provided that (i) any Singapore Revolving Loan made by such Singapore Lender
shall be actually made, issued or participated in, as the case may be, by such
Singapore Affiliate, and (ii) the Singapore Commitment for such Singapore Lender
shall each be deemed to apply to it and such Singapore Affiliate collectively.
"Singapore Loan Parties" means the Singapore Borrower and the Singapore
Subsidiaries, and "Singapore Loan Party" means any one of them.
23
"Singapore Maximum Borrowing Amount" means, at any time, an amount
equal to the lesser of (i) the Aggregate Singapore Commitment minus all Reserves
then in effect related to the Singapore Loan Parties (without duplication of
Reserves used in calculating the Aggregate Singapore Borrowing Base (to the
extent such Reserves are applicable to the calculation in this clause (i)), or
(ii) the Aggregate Singapore Borrowing Base.
"Singapore Obligations" means all unpaid principal and accrued and
unpaid interest on the Singapore Revolving Loans, all Protective Advances made
by the Singapore Correspondent Lender, all Rate Management Obligations of the
Singapore Loan Parties to the Singapore Lenders, all accrued and unpaid fees and
all accrued and unpaid expenses, reimbursements, indemnities, and other
obligations of the Singapore Loan Parties to the Singapore Lenders or to any
Singapore Lender, the Singapore Correspondent Lender, or any indemnified party
(with respect to the Singapore Fixed Rate Loans) arising under the Loan
Documents.
"Singapore Revolving Loans" means the revolving loans extended by the
Singapore Lenders to the Singapore Borrower pursuant to Section 2.1.1 hereof.
"Singapore Revolving Note" is defined in Section 2.21(d) hereof.
"Singapore Subsidiary" means any Subsidiary of a Domestic Borrower or
Singapore Borrower (other than Singapore Borrower) that is organized under the
laws of Singapore and that is either party to this Agreement on the date hereof
or is added as a party to this Agreement pursuant to a Joinder Agreement.
"Single Employer Plan" means a Plan maintained by a Domestic Loan Party
or any member of a Controlled Group for employees of such Loan Party or any
member of a Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is contractually subordinated to payment of the
Guaranteed Obligations to the written satisfaction of the Agent.
"Subsidiary" of a Person means, any corporation, partnership, limited
liability company, association, joint venture or similar business organization
more than 50% of the outstanding Capital Stock having ordinary voting power of
which shall at the time be owned or controlled by such Person. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Company.
"Substantial Portion" means Property which represents more than the
greater of (a) $5,000,000 or (b) 10% of the consolidated assets of a Borrower or
property which is responsible for more than 10% of the consolidated net sales or
of the consolidated net income of such Borrower, in each case, as would be shown
in the consolidated financial statements of such Borrower as at the beginning of
the twelve-month period ending with the month in which such determination is
made (or if financial statements have not been delivered hereunder for that
month which begins the twelve-month period, then the financial statements
delivered hereunder for the quarter ending immediately prior to that month).
"Substitute Note" is defined in Section 2.24.
"Supporting Letter of Credit" is defined in Section 2.1.2(l).
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Term A Loan Commitment" means (a) as to any Lender, the aggregate
commitment of such Lender to make Loans as set forth in the Commitment Schedule
or in the most recent Assignment Agreement
24
executed by such Lender and (b) as to all Lenders, the aggregate commitment of
all Lenders to make Term A Loans, which aggregate commitment shall be Twelve
Million Dollars ($12,000,000) on the Closing Date. After advancing the Term A
Loan, each reference to a Lender's Term A Loan Commitment shall refer to that
Lender's Pro Rata Share.
"Term A Loans" means the term loans extended by the Lenders to the
Borrowers pursuant to Section 2.1.5 hereof.
"Term A Note" is defined in Section 2.21(d).
"Term B Loan Commitment" means (a) as to any Lender, the aggregate
commitment of such Lender to make Term B Loans as set forth in the Commitment
Schedule or in the most recent Assignment Agreement executed by such Lender and
(b) as to all Lenders, the aggregate commitment of all Lenders to make Term B
Loans, which aggregate commitment shall be Eight Million Dollars ($8,000,000) on
the Closing Date. After advancing the Term B Loan, each reference to a Lender's
Term B Loan Commitment shall refer to that Lender's Pro Rata Share.
"Term B Loans" means the term loans extended by the Lenders to the
Borrower pursuant to Section 2.1.6 hereof.
"Term B Note" is defined in Section 2.21(d).
"Term Loans" means, collectively, the Term A Loans and the Term B
Loans.
"Term Notes" means, collectively, the Term A Notes and the Term B
Notes.
"Trademarks" shall have the meaning given to such term in the Security
Agreement.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Fixed Rate Advance, and with respect to any Loan, its nature
as a Floating Rate Loan or a Fixed Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of Ohio or any other state the laws of which are required to be
applied in connection with the issue of perfection of security interests.
"Unfunded Liabilities" means the aggregate "unfunded current
liabilities" of all Single Employer Plans as defined under Section 412(l)(8)(A)
of the Code.
"Unliquidated Secured Obligations" means, at any time, any Secured
Obligations (or portion thereof) that is contingent in nature or unliquidated at
such time, including any Secured Obligation that is: (i) an obligation to
reimburse a bank for drawings not yet made under a letter of credit issued by
it; (ii) any other obligation (including any guarantee) that is contingent in
nature at such time; or (iii) an obligation to provide collateral to secure any
of the foregoing types of obligations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unused Commitment Fee" is defined in Section 2.10(a).
"U.S." means the United States of America.
25
"Wholly-Owned Subsidiary" of a Person means, any Subsidiary all of the
outstanding Capital Stock of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting term not
specifically defined in this Article I shall have the meaning ascribed thereto
by GAAP. Unless otherwise defined in this Article I, terms that are defined in
the UCC, as in effect from time to time, are used herein as so defined.
ARTICLE II
THE FACILITY
2.1. The Facility. Each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to (a) make Loans to the Borrowers as
set forth below and (b) participate in Facility LCs issued upon the request of
the Domestic Borrowers, provided that, after giving effect to the making of each
such Advance and the issuance of each such Facility LC, such Lender's Credit
Exposure shall not exceed its Commitment; provided further, that the Aggregate
Credit Exposure shall not exceed the Aggregate Commitment. The LC Issuer will
issue Facility LCs hereunder on the terms and conditions set forth in Section
2.1.2. The Facility shall be composed of Domestic Revolving Loans, Singapore
Revolving Loans, Non-Ratable Loans, Protective Advances, Overadvances, Facility
LCs, and Term Loans, as set forth below:
2.1.1. Revolving Loans
(a) Domestic Amount. From and including the
Closing Date and prior to the Facility Termination Date, each
Domestic Lender severally agrees, on the terms and conditions
set forth in this Agreement, to make revolving loans (the
"Domestic Revolving Loans") to, and participate in Facility
LCs issued as set forth in Section 2.1.2 below on behalf of,
the Domestic Borrowers, in aggregate amounts not to exceed
such Lender's Pro Rata Share of the Aggregate Revolving
Commitment. If any requested Advance to the Domestic Borrowers
would exceed the Availability or the Domestic Availability,
the Domestic Lenders will refuse to make or may otherwise
restrict the making of Domestic Revolving Loans or the
issuance of Facility LCs as the Domestic Lenders determine
until such excess has been eliminated, subject to the Agent's
authority, in its sole discretion, to make Protective Advances
and Overadvances pursuant to the terms of Section 2.1.4. The
Domestic Revolving Loans may consist of Domestic Floating Rate
Advances or Eurodollar Advances, or a combination thereof,
selected by the Company in accordance with Sections 2.1.1(c)
and 2.7. Subject to the terms of this Agreement, the Domestic
Borrowers may borrow, repay and reborrow Domestic Revolving
Loans any time prior to the Facility Termination Date. The
Domestic Revolving Commitments to extend credit hereunder
shall expire on the Facility Termination Date.
(b) Singapore Amount. From and including the
Closing Date and prior to the Facility Termination Date, each
Singapore Lender severally agrees, on the terms and conditions
set forth in this Agreement, to make revolving loans (the
"Singapore Revolving Loans") to the Singapore Borrower, in
aggregate amounts not to exceed such Lender's Pro Rata Share
of the Aggregate Singapore Commitment. If any requested
Singapore Advance to the Singapore Borrower would exceed the
Availability or the Singapore Availability, the Singapore
Lenders will refuse to make or may otherwise restrict the
making of Singapore Revolving Loans as the Singapore Lenders
determine until such excess has been eliminated, subject to
the Agent's authority, in its sole discretion, to direct the
Singapore Correspondent Lender to make Protective Advances and
Overadvances
26
pursuant to the terms of Section 2.1.4. The Singapore
Revolving Loans may consist of Singapore Floating Rate
Advances or Singapore Fixed Rate Advances, or a combination
thereof, selected by the Company in accordance with Sections
2.1.1(c) and 2.7. Subject to the terms of this Agreement, the
Singapore Borrower may borrow, repay and reborrow Singapore
Revolving Loans any time prior to the Facility Termination
Date. The Singapore Commitments to extend credit hereunder
shall expire on the Facility Termination Date. All Singapore
Revolving Loans will be funded in Singapore Dollars.
(c) Borrowing Procedures. The Company shall
select the Type of Advance and, in the case of each Fixed Rate
Advance, the Interest Period applicable thereto, from time to
time. The Company shall give the Agent irrevocable notice (a
"Borrowing Notice") (with a copy to the Singapore
Correspondent Lender for Singapore Revolving Loans) not later
than 10:00 a.m. (Chicago time) on the Borrowing Date of each
Floating Rate Advance, and not later than 10:00 a.m. (Chicago
time) three Business Days before the Borrowing Date for each
Fixed Rate Advance, specifying (in the form of Exhibit A): (1)
the Borrower, (2) the Borrowing Date, which shall be a
Business Day, of such Advance, (3) the aggregate amount of
such Advance, (4) the Type of Advance selected; provided that,
if the Company fails to specify the Type of Advance requested,
such request shall be deemed a request for a Floating Rate
Advance, and (5) the duration of the Interest Period if the
Type of Advance requested is a Fixed Rate Advance.
(d) The Agent's Election. Promptly after receipt
of a Borrowing Notice (or telephonic notice in lieu thereof)
of a requested Domestic Floating Rate Advance, the Agent shall
elect in its discretion to have the terms of Section 2.1.1(e)
(pro rata advance by all Domestic Lenders) or Section 2.1.3
(advance by the Agent, in the form of a Non-Ratable Loan, on
behalf of the Domestic Lenders) apply to such requested
Advance.
(e) Pro Rata Advance. If the requested Advance
is for a Domestic Floating Rate Advance, unless the Agent
elects to have the terms of Section 2.1.3 apply to the
requested Domestic Floating Rate Advance, or if a requested
Advance is for a Domestic Fixed Rate Advance, then promptly
after receipt of a Borrowing Notice or telephonic notice in
lieu thereof as permitted by Section 2.8, the Agent shall
notify the Domestic Lenders by telecopy (with telephonic
confirmation of receipt), telephone, or e-mail (with
telephonic confirmation of receipt) of the requested Advance.
Not later than 12:00 noon (Chicago time) on each Borrowing
Date, each Domestic Lender shall make available its Pro Rata
Share of such Domestic Revolving Loan in funds immediately
available in Chicago to the Agent, and the Agent will make the
funds so received from the Lenders available to the Domestic
Borrowers at the Funding Account as set forth in Section 2.5.
2.1.2. Facility LCs.
(a) Issuance. The LC Issuer hereby agrees, on
the terms and conditions set forth in this Agreement, to issue
to a Domestic Loan Party standby and commercial Letters of
Credit (each, a "Facility LC") and to renew, extend, increase,
decrease or otherwise modify each Facility LC ("Modify," and
each such action a "Modification"), from time to time from and
including the Closing Date of this Agreement and prior to the
Facility Termination Date upon the request of the Company, on
behalf of itself or the applicable Loan Party; provided that,
the maximum face amount of the Facility LC to be issued or
Modified, does not exceed the lesser of (i) an amount equal to
$25,000,000 minus the sum of (A) the aggregate undrawn amount
of all outstanding Facility LCs at such time plus, without
duplication, (B) the aggregate unpaid Reimbursement
Obligations with respect to all Facility LCs outstanding at
such time and (ii) the Domestic Availability. No Facility LC
(or any renewal thereof) shall have an expiry date later than
the earlier of (i) the fifth Business Day
27
prior to the Facility Termination Date and (ii) one year after
its issuance; provided that each Facility LC with a one-year
tenor may provide for the renewal thereof for additional
one-year periods.
(b) Participations. Upon the issuance or
Modification by the LC Issuer of a Facility LC in accordance
with this Section 2.1.2, the LC Issuer shall be deemed,
without further action by any party hereto, to have
unconditionally and irrevocably sold to each Domestic Lender,
and each Domestic Lender shall be deemed, without further
action by any party hereto, to have unconditionally and
irrevocably purchased from the LC Issuer, a participation in
such Facility LC (and each Modification thereof) and the
related LC Obligations in proportion to its Pro Rata Share of
the Aggregate Revolving Commitment.
(c) Notice. Subject to Section 2.1.2(a), the
Company, on behalf of itself or the applicable Loan Party,
shall give the LC Issuer notice prior to 10:00 a.m. (Chicago
time) at least three Business Days prior to the proposed date
of issuance or Modification of each Facility LC, specifying
the beneficiary, the proposed date of issuance (or
Modification), and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC and the
nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, the LC Issuer shall promptly
notify the Agent, and the Agent shall promptly notify each
Domestic Lender, of the contents thereof and of the amount of
such Lender's participation in such proposed Facility LC. The
issuance or Modification by the LC Issuer of any Facility LC
shall, in addition to the conditions precedent set forth in
Article IV (the satisfaction of which the LC Issuer shall have
no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to the LC Issuer
and that the Company, on behalf of itself or the applicable
Loan Party for whose benefit the Facility LC is to be issued,
shall have executed and delivered such application agreement
and/or such other instruments and agreements relating to such
Facility LC as the LC Issuer shall have reasonably requested
(each, a "Facility LC Application"). In the event of any
conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall
control.
(d) Administration; Reimbursement by Lenders.
Upon receipt from the beneficiary of any Facility LC of any
demand for payment under such Facility LC, the LC Issuer shall
notify the Agent and the Agent shall promptly notify the
Company and each other Domestic Lender as to the amount to be
paid by the LC Issuer as a result of such demand and the
proposed payment date (the "LC Payment Date"). The
responsibility of the LC Issuer to the Company and each
Domestic Lender shall be only to determine that the documents
(including each demand for payment) delivered under each
Facility LC in connection with such presentment shall be in
conformity in all material respects with such Facility LC. The
LC Issuer shall endeavor to exercise the same care in the
issuance and administration of the Facility LCs as it does
with respect to letters of credit in which no participations
are granted, it being understood that in the absence of any
gross negligence or willful misconduct by the LC Issuer, each
Domestic Lender shall be unconditionally and irrevocably
liable without regard to the occurrence of any Default or any
condition precedent whatsoever, to reimburse the LC Issuer on
demand for (i) such Lender's Pro Rata Share of the amount of
each payment made by the LC Issuer under each Facility LC to
the extent such amount is not reimbursed by the Domestic
Borrowers pursuant to Section 2.1.2(e) below, plus (ii)
interest on the foregoing amount to be reimbursed by the
Domestic Lenders, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is
made after 11:00 a.m. (Chicago time) on such date, from the
next succeeding Business Day) to the date on which such
Domestic Lender pays the amount to be reimbursed by it, at a
rate of interest per annum equal to the Federal Funds
Effective Rate for the first
28
three days and, thereafter, at a rate of interest equal to the
rate applicable to Domestic Floating Rate Advances.
(e) Reimbursement by the Domestic Borrowers. The
Domestic Borrowers shall be irrevocably and unconditionally,
jointly and severally, obligated to reimburse the LC Issuer on
or before the applicable LC Payment Date for any amounts to be
paid by the LC Issuer upon any drawing under any Facility LC,
without presentment, demand, protest or other formalities of
any kind; provided that, neither the Domestic Borrowers nor
any Domestic Lender shall hereby be precluded from asserting
any claim for direct (but not consequential) damages suffered
by the Domestic Borrowers or such Domestic Lender to the
extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC
Issuer's failure to pay under any Facility LC issued by it
after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. All such
amounts paid by the LC Issuer and remaining unpaid by the
Domestic Borrowers shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to (x) the rate
applicable to Domestic Floating Rate Advances for such day if
such day falls on or before the applicable LC Payment Date and
(y) the sum of 2% plus the rate applicable to Floating Rate
Advances for such day if such day falls after such LC Payment
Date. The LC Issuer will pay to each Domestic Lender ratably
in accordance with its Pro Rata Share all amounts received by
it from the Domestic Borrowers for application in payment, in
whole or in part, of the Reimbursement Obligation in respect
of any Facility LC issued by the LC Issuer, but only to the
extent such Domestic Lender has made payment to the LC Issuer
in respect of such Facility LC pursuant to Section 2.1.2(d).
Subject to the terms and conditions of this Agreement
(including without limitation the submission of a Borrowing
Notice in compliance with Section 2.1.1(e) and the
satisfaction of the applicable conditions precedent set forth
in Article IV), the Company may request an Advance hereunder
for the purpose of satisfying any Reimbursement Obligation.
(f) Obligations Absolute. The Domestic
Borrowers' obligations under this Section 2.1.2 shall be
absolute and unconditional, and joint and several, under any
and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Domestic
Borrowers may have or have had against the LC Issuer, any
Domestic Lender or any beneficiary of a Facility LC. The
Domestic Borrowers further agree with the LC Issuer and the
Domestic Lenders that the LC Issuer and the Domestic Lenders
shall not be responsible for, and the Domestic Borrowers'
Reimbursement Obligation in respect of any Facility LC shall
not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even
if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between
or among the Domestic Borrowers, any of their Affiliates, the
beneficiary of any Facility LC or any financing institution or
other party to whom any Facility LC may be transferred or any
claims or defenses whatsoever of the Domestic Borrowers or of
any of their Affiliates against the beneficiary of any
Facility LC or any such transferee. The LC Issuer shall not be
liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Facility LC. The
Domestic Borrowers agree that any action taken or omitted by
the LC Issuer or any Domestic Lender under or in connection
with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be
binding upon the Domestic Borrowers and shall not put the LC
Issuer or any Lender under any liability to the Domestic
Borrowers. Nothing in this Section 2.1.2(f) is intended to
limit the right of the Domestic Borrowers to make a claim
against the LC Issuer for damages as contemplated by the
proviso to the first sentence of Section 2.1.2(e).
29
(g) Actions of LC Issuer. The LC Issuer shall be
entitled to rely, and shall be fully protected in relying,
upon any Facility LC, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other
document reasonably believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the LC
Issuer. The LC Issuer shall be fully justified in failing or
refusing to take any action under this Agreement unless it
shall first have received such advice or concurrence of the
Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by
the Domestic Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing
to take any such action. Notwithstanding any other provision
of this Section 2.1.2, the LC Issuer shall in all cases be
fully protected in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon the Domestic
Lenders and any future holders of a participation in any
Facility LC.
(h) Indemnification. The Domestic Borrowers,
jointly and severally, hereby agree to indemnify and hold
harmless each Domestic Lender, the LC Issuer and the Agent,
and their respective directors, officers, agents and employees
from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Lender, the LC
Issuer or the Agent may incur (or which may be claimed against
such Lender, the LC Issuer or the Agent by any Person
whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to
pay under any Facility LC or any actual or proposed use of any
Facility LC, including, without limitation, any claims,
damages, losses, liabilities, costs or expenses which the LC
Issuer may incur by reason of or in connection with the LC
Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by
operation of law of the named Beneficiary, but which Facility
LC does not require that any drawing by any such successor
Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of
such successor Beneficiary; provided that, the Domestic
Borrowers shall not be required to indemnify any Domestic
Lender, the LC Issuer or the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by (x) the willful misconduct or gross
negligence of the LC Issuer in determining whether a request
presented under any Facility LC complied with the terms of
such Facility LC or (y) the LC Issuer's failure to pay under
any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of such
Facility LC. Nothing in this Section 2.1.2(h) is intended to
limit the obligations of the Domestic Borrowers under any
other provision of this Agreement.
(i) Lenders' Indemnification. Each Domestic
Lender shall, ratably in accordance with its Pro Rata Share,
indemnify the LC Issuer, its Affiliates and their respective
directors, officers, agents and employees (to the extent not
reimbursed by the Domestic Borrowers) against any cost,
expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful
misconduct or the LC Issuer's failure to pay under any
Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of the Facility LC)
that such indemnitees may suffer or incur in connection with
this Section 2.1.2 or any action taken or omitted by such
indemnitees hereunder.
(j) Facility LC Collateral Account. The Domestic
Borrowers agree that they will, after the occurrence and
during the continuance of a Default, upon the request of the
30
Agent or the Required Lenders and until the final expiration
date of any Facility LC and thereafter as long as any amount
is payable to the LC Issuer or the Domestic Lenders in respect
of any Facility LC, maintain a special collateral account
pursuant to arrangements satisfactory to the Agent (the
"Facility LC Collateral Account") at the Agent's office at the
address specified pursuant to Article XIII, in the name of the
Company but under the sole dominion and control of the Agent,
for the benefit of the Domestic Lenders, and in which the
Domestic Borrowers shall have no interest other than as set
forth in Section 8.1. The Domestic Borrowers hereby pledge,
assign and grant to the Agent, on behalf of and for the
ratable benefit of the Domestic Lenders and the LC Issuer, a
security interest in all of the Domestic Borrowers' right,
title and interest in and to all funds which may from time to
time be on deposit in the Facility LC Collateral Account to
secure the prompt and complete payment and performance of the
Secured Obligations. The Agent will invest any funds on
deposit from time to time in the Facility LC Collateral
Account in certificates of deposit of Bank One having a
maturity not exceeding thirty days. Nothing in this Section
2.1.2(j) shall either obligate the Agent to require the
Domestic Borrowers to deposit any funds in the Facility LC
Collateral Account or limit the right of the Agent to release
any funds held in the Facility LC Collateral Account in each
case other than as required by Section 8.1.
(k) Rights as a Lender. In its capacity as a
Domestic Lender, the LC Issuer shall have the same rights and
obligations as any other Domestic Lender.
(l) Termination of the Facility. If,
notwithstanding the provisions of this Section 2.1.2, any
Facility LC is outstanding at the time of termination of this
Agreement, then upon such termination the Domestic Borrowers
shall deposit with the Agent, for the benefit of the Agent and
the Domestic Lenders, with respect to all LC Obligations, as
the Agent in its discretion shall specify, either (i) a
standby letter of credit (a "Supporting Letter of Credit"), in
form and substance satisfactory to the Agent, issued by an
issuer satisfactory to the Agent, in an amount in immediately
available funds (which funds shall be held in the Facility LC
Collateral Account) equal to 105% of the difference of (x) the
amount of LC Obligations of the Domestic Borrowers at such
time, less (y) the amount on deposit in the Domestic
Borrowers' Facility LC Collateral Account at such time which
is free and clear of all rights and claims of third parties
and has not been applied against the Obligations (such
difference, the "Collateral Shortfall Amount"), under which
Supporting Letter of Credit the Agent is entitled to draw
amounts necessary to reimburse the Agent, the LC Issuer and
the Domestic Lenders for payments to be made by the Agent, the
LC Issuer and the Domestic Lenders under any such Facility LC
and any fees and expenses associated with such Facility LC, or
(ii) cash in an amount equal to 105% of the Collateral
Shortfall Amount. Such Supporting Letter of Credit or deposit
of cash shall be held by the Agent, for the benefit of the
Agent and the Domestic Lenders, as security for, and to
provide for the payment of, the aggregate undrawn amount of
such Facility LC remaining outstanding.
2.1.3. Non-Ratable Loans. Subject to the restrictions
set forth in Section 2.1.1(a), the Agent may elect to have the
terms of this Section 2.1.3 apply to any requested Domestic
Floating Rate Advance and Bank One shall thereafter make an
Advance, on behalf of the Domestic Lenders and in the amount
requested, available to the Domestic Borrowers on the
applicable Borrowing Date by transferring same day funds to
the appropriate Funding Account. Each Advance made solely by
Bank One pursuant to this Section 2.1.3 is referred to in this
Agreement as a "Non-Ratable Loan," and such Advances are
referred to as the "Non-Ratable Loans." Each Non-Ratable Loan
shall be subject to all the terms and conditions applicable to
other Advances funded by the Domestic Lenders, except that all
payments thereon shall be payable to Bank One solely for its
own account. The aggregate amount of Non-Ratable Loans
outstanding at any time shall not exceed the lesser of (a)
$5,000,000 and (b) the Domestic Availability (before giving
effect to such Non-Ratable
31
Loan). Non-Ratable Loans may be made even if a Default or
Unmatured Default exists, but may not be made if the
conditions precedent set forth in Section 4.2 have not been
satisfied. The Non-Ratable Loans shall be secured by the Liens
granted to the Agent in and to the Collateral and shall
constitute Obligations hereunder. All Non-Ratable Loans shall
be Domestic Floating Rate Advances and are subject to the
settlement provisions set forth in Section 2.19.
Notwithstanding anything to the contrary contained in this
Agreement, each Non-Ratable Loan shall be repaid by the
Domestic Borrowers within five Business Days after the date on
which such Non-Ratable Loan was made.
2.1.4. Protective Advances and Overadvances.
(a) Protective Advances. Subject to the
limitations set forth below, the Agent is authorized by the
Borrowers and the Lenders, from time to time in the Agent's
sole discretion, to make Advances to the Domestic Borrowers
(or to direct the Singapore Correspondent Lender to make
Advances to the Singapore Borrower), on behalf of the Lenders,
in an aggregate amount outstanding at any time not to exceed
the Dollar Equivalent of $5,000,000, which the Agent, in its
reasonable business judgment, deems necessary or desirable (i)
to preserve or protect the Collateral, or any portion thereof,
(ii) to enhance the likelihood of, or maximize the amount of,
repayment of the Loans and other Obligations, or (iii) to pay
any other amount chargeable to or required to be paid by the
Borrowers pursuant to the terms of this Agreement, including
costs, fees, and expenses as described in Section 9.6 (any of
such Advances are herein referred to as "Protective
Advances"); provided that, no Protective Advance shall cause
any Lender's Credit Exposure to exceed its Commitment, the
Aggregate Revolving Exposure to exceed the Aggregate Revolving
Commitment, or the Singapore Exposure to exceed the Aggregate
Singapore Commitment. Protective Advances may be made even if
the conditions precedent set forth in Section 4.2 have not
been satisfied. The Protective Advances shall be secured by
the Liens in favor of the Agent or the Singapore Lender, in
and to the Collateral and shall constitute Obligations
hereunder; provided that if a Protective Advance relates to
Collateral of a Singapore Borrower, such Protective Advance
shall constitute a Singapore Obligation, and shall be secured
by Liens in favor of the Singapore Correspondent Lender. All
Protective Advances shall be Floating Rate Advances and are
subject to the settlement provisions set forth in Section
2.19.
(b) Overadvances. Any provision of this
Agreement to the contrary notwithstanding, at the request of
the Company, the Agent may in its sole discretion (but shall
have absolutely no obligation to), make Advances to the
Domestic Borrowers, on behalf of the Domestic Lenders, in
amounts that exceed the Domestic Availability (any such excess
Advances are herein referred to collectively as
"Overadvances"); provided that, (i) no such event or
occurrence shall cause or constitute a waiver of the Agent's
or the Lenders' right to refuse to make any further
Overadvances, Loans or Non-Ratable Loans, or issue Facility
LCs, as the case may be, at any time that an Overadvance
exists, (ii) no Overadvance shall result in a Default or
Unmatured Default due to the Borrower's failure to comply with
Section 2.1.1(a) for so long as the Agent permits such
Overadvance to remain outstanding, but solely with respect to
the amount of such Overadvance, and (iii) in no event shall
Overadvances be outstanding for more than 30 days (which days
need not be consecutive) in any 180 day period. In addition,
Overadvances may be made even if a Default or Unmatured
Default exists, but may not be made if the conditions
precedent set forth in Section 4.2 have not been satisfied
(other than the condition regarding availability). All
Overadvances shall constitute Domestic Floating Rate Advances,
shall bear interest at the default rate set forth in Section
2.12 and shall be payable on the earlier of demand or the
Facility Termination Date. In addition, all Overadvances are
subject to the settlement provisions set forth in Section
2.19. The authority of the Agent to make Overadvances is
limited to an aggregate amount not to exceed $5,000,000 at any
time and no Overadvance
32
shall cause any Lender's Domestic Revolving Exposure to exceed
its aggregate Commitment, or the Aggregate Revolving Exposure
to exceed the Aggregate Revolving Commitment; provided that,
the Required Lenders may at any time revoke the Agent's
authorization to make Overadvances. Any such revocation must
be in writing and shall become effective prospectively upon
the Agent's receipt thereof. Notwithstanding anything to the
contrary in any Loan Document, Overadvances shall not be
secured by any Collateral of any Loan Party that is not a
Domestic Borrower or a Domestic Subsidiary.
2.1.5. Term A Loans.
(a) Amounts of Term A Loans. Each Domestic
Lender severally agrees to make a term loan (any such term
loan being referred to as a "Term A Loan" and such term loans
being referred to collectively as the "Term A Loans") to the
Domestic Borrowers on the Closing Date, upon the satisfaction
of the conditions precedent set forth in Article IV, in an
amount equal to such Lender's Pro Rata Share of the Term A
Loan Commitment. The Term A Loans shall initially be Domestic
Floating Rate Advances but may be converted into Eurodollar
Advances in accordance with Section 2.7.
(b) Initial Funding by Lenders. Each Domestic
Lender shall make the amount of such Lender's Term A Loan
available to the Agent in immediately available funds at
Agent's designated account, not later than 11:00 a.m. (Chicago
time) on the Closing Date. After the Agent's receipt of the
proceeds of such Term A Loan from the Domestic Lenders and
upon satisfaction of the conditions precedent set forth in
Article IV, the Agent shall make the proceeds of such Term A
Loan available to the Domestic Borrowers in the appropriate
Funding Account on the Closing Date by transferring
immediately available funds equal to the proceeds of such Term
A Loans received by the Agent to the appropriate Funding
Account or as the Company shall otherwise instruct in writing.
(c) Amortization; Payments. Subject to the next
succeeding sentence, the Term A Loans shall amortize in
twenty-eight (28) quarterly installments, in an amount equal
to $428,571.42 and shall be payable on the first day of each
January, April, July, and October, commencing on July 1, 2004.
Notwithstanding the amortization schedule set forth herein, in
any Note or anything else contained herein or in any Loan
Document to the contrary, the outstanding principal amount,
together with all accrued and unpaid interest thereon, of all
Term A Loans shall be due and payable in full on the Facility
Termination Date. Each such installment shall be payable to
the Agent for the account of the Domestic Lenders. Payments or
prepayments of the Term A Loans may not be reborrowed.
2.1.6. Term B Loans.
(a) Amounts of Term B Loans. Each Domestic
Lender severally agrees to make a term loan (any such term
loan being referred to as a "Term B Loan" and such term loans
being referred to collectively as the "Term B Loans") to the
Domestic Borrowers on the Closing Date, upon the satisfaction
of the conditions precedent set forth in Article IV, in an
amount equal to such Lender's Pro Rata Share of the Term B
Loan Commitment. The Term B Loans shall initially be Domestic
Floating Rate Advances but may be converted into Eurodollar
Advances in accordance with Section 2.7.
(b) Initial Funding by Lenders. Each Domestic
Lender shall make the amount of such Lender's Term B Loan
available to the Agent in immediately available funds at
Agent's designated account, not later than 11:00 a.m. (Chicago
time) on the Closing Date. After the Agent's receipt of the
proceeds of such Term B Loan from the Domestic Lenders and
upon satisfaction of the conditions precedent set forth in
Article IV, the Agent shall
33
make the proceeds of such Term B Loan available to the
Domestic Borrowers in the appropriate Funding Account on the
Closing Date by transferring immediately available funds equal
to the proceeds of such Term B Loans received by the Agent to
the appropriate Funding Account or as the Company shall
otherwise instruct in writing.
(c) Amortization; Payments. Subject to the next
succeeding sentence, the Term B Loans shall amortize in
twenty-eight (28) quarterly installments, in an amount equal
to $285,714.28 and shall be payable on the first day of each
January, April, July, and October, commencing on July 1, 2004.
Notwithstanding the amortization schedule set forth herein, in
any Note or anything else contained herein or in any Loan
Document to the contrary, the outstanding principal amount,
together with all accrued and unpaid interest thereon, of all
Term B Loans shall be due and payable in full on the Facility
Termination Date. Each such installment shall be payable to
the Agent for the account of the Domestic Lenders. Payments or
prepayments of the Term B Loans may not be reborrowed.
2.1.7 Security for Secured Foreign Obligations.
Notwithstanding anything to the contrary in this Agreement or
in any other Loan Document, the Singapore Loan Parties shall
be liable only for the Singapore Obligations and the Singapore
Collateral shall secure only the Singapore Obligations, but
the Domestic Loan Parties are liable for all Obligations, and
the domestic Collateral secures all Obligations.
2.2. Ratable Loans; Risk Participation. Except as otherwise
provided below, each Advance made in connection with a Loan shall consist of
Loans made by each Lender in an amount equal to such Lender's then Pro Rata
Share of the applicable Commitment; provided that, with respect to Advances made
in connection with Singapore Revolving Loans, such Advances shall consist of
Loans made solely by each Singapore Lender, in an amount equal to such Lender's
Pro Rata Share of the Aggregate Singapore Commitment. Upon the making of an
Advance by the Agent in connection with a Non-Ratable Loan (whether before or
after the occurrence of a Default or an Unmatured Default and regardless of
whether the Agent has requested a Settlement with respect to such Non-Ratable
Loan) or an Overadvance, the Agent shall be deemed, without further action by
any party hereto, to have unconditionally and irrevocably sold to each Domestic
Lender and each such Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from the Agent,
without recourse or warranty, an undivided interest and participation in such
Non-Ratable Loan or an Overadvance in proportion to its Pro Rata Share of the
Aggregate Commitment. Those Lenders that shall have actually made Singapore
Revolving Loans (each such Lender being referred to as a "Participating
Lender"), shall be deemed, immediately upon the making of such Loan, without
further action by any party hereto, to have unconditionally and irrevocably sold
to each Lender that did not make Singapore Revolving Loans (each such
"non-lending" Lender being referred to as a "Non-Participating Lender"), and
each Non-Participating Lender shall be deemed, immediately upon the making of
such Advance, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the Participating Lenders, an
undivided interest and unfunded participation in such Advances in proportion to
its Pro Rata Share of the Aggregate Commitment; provided that, (a) beginning
with the first day of each such Advance, the interest that accrues with respect
to each such Advance shall also be for the account of each Non-Participating
Lender in accordance with its Pro Rata Share of such Advance, and (b) upon the
occurrence of a Default, at the Agent's sole and absolute discretion, which
shall be evidenced in a written notice to each Lender and the Company, each
Non-Participating Lender shall transfer the amount of such Lender's Pro Rata
Share of the outstanding principal amount of the applicable Advance with respect
to which settlement is requested to the Applicable Agent, to such account of the
Applicable Agent as the Applicable Agent may designate, not later than 12:00
p.m. (local time), on the settlement date specified in the notice.
2.3. Payment of the Obligations; Currency. The Borrowers shall
repay the outstanding principal balance of the Loans, together with all other
Obligations, including all accrued and unpaid interest thereon, on the Facility
Termination Date. Each Obligation related to the Domestic Revolving Loans shall
be paid in
34
Dollars and each Obligation related to Singapore Revolving Loans shall be paid
in Singapore Dollars. All such repayment obligations of the Borrowers shall be
joint and several.
2.4. Minimum Amount of Each Advance. Each Eurodollar Advance shall
be in the minimum amount of the Dollar Equivalent of $3,000,000 and in multiples
of the Dollar Equivalent of $1,000,000 if in excess thereof. Each Singapore
Fixed Rate Advance shall be in the minimum amount of the Dollar Equivalent of
$100,000 and in multiples of the Dollar Equivalent of $100,000 if in excess
thereof. Floating Rate Advances may be in any amount.
2.5. Funding Account. BEM Services Inc. and the Singapore Borrower
shall each establish prior to the Closing Date, a Funding Account to which the
Agent or the Singapore Correspondent Lender, as the case may be, is authorized
by the Borrowers to transfer the proceeds of any Advances requested pursuant to
this Agreement. The Company may designate a replacement Funding Account for any
such Borrower from time to time by written notice to the Agent. Any designation
by the Company of a Funding Account must be reasonably acceptable to the Agent.
2.6. Reliance Upon Authority; No Liability. The Agent is entitled
to rely conclusively on any individual's request for Advances hereunder, so long
as the proceeds thereof are to be transferred to a Funding Account. The Agent
shall have no duty to verify the identity of any individual representing himself
or herself as a person authorized to make such requests on behalf of the
Borrowers. The Agent shall not incur any liability to the Borrowers as a result
of acting upon any notice referred to in Section 2.1 which the Agent reasonably
believes to have been given by an officer or other person duly authorized by the
Borrowers to request Advances on behalf of the Borrowers or for otherwise acting
under this Agreement. The crediting of Advances to a Funding Account shall
conclusively establish the obligation of the Borrowers to repay such Advances as
provided herein.
2.7. Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Fixed Rate Advances pursuant to this
Section 2.7 or are repaid in accordance with this Agreement. Each Fixed Rate
Advance, shall continue as a Fixed Rate Advance until the end of the then
applicable Interest Period therefor, at which time such Fixed Rate Advance shall
be automatically converted into a Floating Rate Advance unless (a) such Fixed
Rate Advance is or was repaid in accordance with this Agreement or (b) the
Company shall have given the Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Fixed Rate
Advance continues as a Fixed Rate Advance for the same or another Interest
Period. Subject to the terms of Section 2.4, the Borrowers may elect from time
to time to convert all or any part of a Floating Rate Advance into a Fixed Rate
Advance. The Company shall give the Agent irrevocable notice in the form of
Exhibit B (a "Conversion/Continuation Notice") of each conversion of a Floating
Rate Advance into a Fixed Rate Advance or continuation of a Fixed Rate Advance
not later than 10:00 a.m. (Chicago time) at least three Business Days prior to
the date of the requested conversion or continuation, specifying (i) the
requested date, which shall be a Business Day, of such conversion or
continuation, (ii) the aggregate amount and Type of the Advance which is to be
converted or continued, (iii) the amount of such Advance which is to be
converted into or continued as a Fixed Rate Advance (provided that the amounts
set forth in Section 2.4 shall be complied with), and (iv) the duration of the
Interest Period applicable thereto.
2.8. Telephonic Notices. The Borrowers hereby authorize the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrowers, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Company agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation
35
differs in any material respect from the action taken by the Agent and the
Lenders, the records of the Agent and the Lenders shall govern absent manifest
error.
2.9. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Agent will notify
each applicable Lender of the contents of each Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
Promptly after notice from the LC Issuer, the Agent will notify each applicable
Lender of the contents of each request for issuance of a Facility LC hereunder
or any Modification. The Agent will notify each applicable Lender of the
interest rate applicable to each Fixed Rate Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of each change in
the Alternate Base Rate and Singapore Base Rate.
2.10. Fees.
(a) Unused Commitment Fee. The Borrowers agree, jointly
and severally, to pay to the Agent, for the account of each Domestic
Lender in accordance with such Lender's Pro Rata Share of the Aggregate
Revolving Commitment, an unused commitment fee at a per annum rate
equal to the Applicable Fee Rate on the average daily Available
Revolving Commitment from the date hereof to and including the Facility
Termination Date, payable in arrears on each Payment Date hereafter
(the "Unused Commitment Fee").
(b) LC Fees. The Domestic Borrowers agree, jointly and
severally, to pay to the Agent, for the account of the Domestic Lenders
ratably in accordance with their respective Pro Rata Shares of the
Aggregate Revolving Commitment, a letter of credit fee at a per annum
rate equal to the Applicable Margin for Eurodollar Loans in effect from
time to time on the average daily undrawn stated amount under each
Facility LC, such fee to be payable in arrears on each Payment Date
(the "LC Fee"). The Domestic Borrowers also agree, jointly and
severally, to pay to the LC Issuer for its own account (i) at the time
of issuance or renewal of each standby Facility LC, a fronting fee of
0.25% of the face amount of the Facility LC, and (ii) documentary and
processing charges in connection with the issuance or Modification of
and draws under Facility LCs in accordance with the LC Issuer's
standard schedule for such charges as in effect from time to time.
(c) Agent and Arranger Fees. The Borrowers agree, jointly
and severally, to pay to the Agent and the Arranger such additional
fees as are specified in the fee letter dated as of September 26, 2003,
among the Agent, the Arranger and the Company (the "Fee Letter").
2.11. Interest Rates.
(a) Each Floating Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and including
the date such Advance is made or is automatically converted from a
Fixed Rate Advance into a Floating Rate Advance pursuant to Section
2.7, to but excluding the date it is paid or is converted into a Fixed
Rate Advance pursuant to Section 2.7 hereof, at a rate per annum equal
to the Domestic Floating Rate or Singapore Floating Rate, as the case
may be, for such day. Changes in the rate of interest on that portion
of any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate or Singapore
Base Rate, as the case may be. Each Fixed Rate Advance shall bear
interest on the outstanding principal amount thereof from and including
the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate
determined by the Applicable Agent as applicable to such Fixed Rate
Advance based upon the Company's selections under Sections 2.1.1 and
2.7 and otherwise in accordance with the terms hereof. No Interest
Period may end after the Facility Termination Date. If at any time
Loans are outstanding with respect to which the Company has not
delivered a notice to the Applicable Agent
36
specifying the basis for determining the interest rate applicable
thereto, those Loans shall bear interest at the Domestic Floating Rate
or the Singapore Floating Rate, as the case may be.
(b) If any provision of this Agreement or any of the
other Loan Documents would obligate a Loan Party to make any payment of
interest or other amount payable to (including for the account of) any
Lender in an amount, or calculated at a rate, that would be prohibited
by law or would result in a receipt by any Lender of interest at a
criminal rate (as such terms are construed under applicable law), then,
notwithstanding such provision, such amount or rate shall be deemed to
have been adjusted with retroactive effect to the maximum amount or
rate of interest, as the case may be, as would not be so prohibited by
law or so result in a receipt by the Lenders of interest at a criminal
rate, such adjustment to be effected, to the extent necessary, as
follows: (i) first, by reducing the amount or rate of interest required
to be paid to the Lenders under this Article II or any other Loan
Document; and (ii) thereafter, by reducing any fees, commissions,
premiums and other amounts required to be paid to the Lenders which
would constitute interest for purposes of applicable law.
Notwithstanding the foregoing, and after giving effect to all
adjustments contemplated thereby, if the Lenders shall have received an
amount in excess of the maximum amount permitted by applicable law,
then the Loan Parties shall be entitled, by notice in writing to the
Agent, to obtain reimbursement from the Lenders in an amount equal to
such excess, and pending such reimbursement, such amount shall be
deemed to be an amount payable by the applicable Lenders to the
Borrowers. Any amount or rate of interest referred to in this Article
II or any other Loan Document shall be determined in accordance with
generally accepted actuarial practices and principles as an effective
annual rate of interest over the term that the Aggregate Commitment
remains outstanding on the assumption that any charges, fees or
expenses that fall within the meaning of "interest" (as defined in
applicable law) shall, if they relate to a specific period of time, be
pro-rated over that period of time and otherwise be pro-rated over the
term of the Loans. The terms and provisions of this Section shall
control every other provision of this Agreement and the Loan Documents.
2.12. Fixed Rate Advances Post Default; Default Rates.
Notwithstanding anything to the contrary contained hereunder, during the
continuance of a Default or Unmatured Default the Agent or the Required Lenders
may, at their option, by notice to the Company (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of Section 8.3
requiring unanimous consent of the Lenders to reductions in interest rates),
declare that no Advance may be made as, converted into or continued as a Fixed
Rate Advance. During the continuance of a Default referenced in subparagraph (a)
of Article VII or due to a breach of the covenants set forth in Section 6.29
hereof (but for no other Default), the Agent or the Required Lenders may, at
their option, by notice to the Company (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 8.3
requiring unanimous consent of the Lenders to reductions in interest rates),
declare that (i) each Fixed Rate Advance shall bear interest until the earlier
to occur of the end of the applicable Interest Period and the date on which such
Default is cured, at the rate otherwise applicable to such Interest Period plus
two percentage points per annum, (ii) each Floating Rate Advance shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus two percentage points per annum and (iii) the LC Fee shall be
increased by two percentage points per annum.
2.13. Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance (other than the Term Loans) shall be
payable on each Payment Date, commencing with the first such date to occur after
the date hereof and at maturity. Interest accrued on each Fixed Rate Advance
(other than the Term Loans) shall be payable on the last day of its applicable
Interest Period, on any date on which the Fixed Rate Advance is prepaid, whether
by acceleration or otherwise, and at maturity. Interest accrued on each Fixed
Rate Advance having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest on all Advances, Unused Commitment Fees and LC Fees shall be
calculated for actual days elapsed on the basis of a 360-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 12:00 noon (local
time) at the place of payment. If any payment of
37
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment. After giving
effect to any Loan, Advance, continuation, or conversion of any Fixed Rate Loan,
there may not be (a) with respect to Eurodollar Loans, more than 7 different
Interest Periods in effect hereunder, and (b) with respect to Singapore Fixed
Rate Loans, more than 7 different Interest Periods in effect hereunder.
2.14. Voluntary Prepayments. The Borrowers may from time to time
prepay, without penalty or premium, all of the outstanding Floating Rate
Advances, or, in a minimum aggregate amount of the Dollar Equivalent of
$500,000, any portion of the outstanding Floating Rate Advances upon one
Business Day's prior notice to the Agent. The Borrowers may also from time to
time prepay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding Fixed
Rate Advances, or, in a minimum aggregate amount of the Dollar Equivalent of
$3,000,000 or any integral multiple of the Dollar Equivalent of $500,000 in
excess thereof, any portion of the outstanding Fixed Rate Advances upon three
Business Days' prior notice to the Agent. The Borrowers shall have the right to
instruct the Agent which Advances it is repaying with any voluntary prepayment.
To the extent the Borrowers do not specify which Advances are being repaid, the
Agent shall apply such repayments to the Loans in the inverse order of the Loans
made; provided that the repayments will be applied first to Floating Rate
Advances and second to Fixed Rate Advances.
2.15. Mandatory Prepayments.
(a) Borrowing Base Compliance. Except for Overadvances
permitted pursuant to Section 2.1.4(b), (i) the Domestic Borrowers
shall immediately repay the Revolving Loans, Reimbursement Obligations
or Non-Ratable Loans if at any time the Aggregate Revolving Exposure
exceeds the Domestic Maximum Borrowing Amount other than solely as a
consequence of exchange rate fluctuations, as to which Section 2.25
applies, and (ii) the Domestic Borrowers and the Singapore Borrower
shall immediately repay the Singapore Revolving Loans if at any time
the Aggregate Singapore Exposure exceeds the Singapore Maximum
Borrowing Amount other than solely as a consequence of exchange rate
fluctuations, as to which Section 2.25 applies, in each case to the
extent required to eliminate such excess. If any such excess remains
after repayment in full of all outstanding Loans and Reimbursement
Obligations, the Borrowers shall provide cash collateral or a
Supporting Letter of Credit for the LC Obligations in the manner set
forth in Section 2.1.2(l) to the extent required to eliminate such
excess.
(b) Sale of Assets. Immediately upon receipt by the
Domestic Borrowers of the Net Cash Proceeds of any asset disposition
(other than an asset disposition permitted by Section 6.19), the
Domestic Borrowers shall prepay the Obligations in an amount equal to
all such Net Cash Proceeds. Any such prepayment shall be applied first,
to pay the principal of the Protective Advances and the Overadvances,
second, to pay the principal of the Non-Ratable Loans, third, to pay
scheduled principal installments of the Term Loans in inverse order of
maturity, fourth, to pay the principal of the Revolving Loans without a
concomitant reduction in the Revolving Commitment, and fifth, to cash
collateralize outstanding Facility LCs.
(c) Issuance of Debt or Equity. If or any Borrower or any
of its respective Subsidiaries issues Capital Stock (other than Common
Stock) or any Loan Party issues Indebtedness (other than Indebtedness
permitted by Section 6.16 or if any Loan Party receives any dividend or
distribution from a Person other than a Loan Party), no later than the
Business Day following the date of receipt of the Net Cash Proceeds of
such issuance or receipt of such dividend, distribution, loan or
advance, such Loan Party shall prepay the Obligations in an amount
equal to all such Net Cash Proceeds, dividends, distributions, loans or
advances. Any such prepayment shall be applied first, to pay the
principal of the Protective Advances and the Overadvances, second, to
pay the principal of the Non-Ratable Loans, third, to pay scheduled
principal installments of the Term Loans in inverse order of
38
maturity, fourth, to pay the principal of the Revolving Loans without a
concomitant reduction in the Revolving Commitment, and fifth, to cash
collateralize outstanding Facility LCs.
(d) Insurance/Condemnation Proceeds. Any insurance or
condemnation proceeds to be applied to the Obligations in accordance
with Section 6.7(c) shall be applied as follows: (i) insurance proceeds
from casualties or losses to cash or Inventory shall be applied, first,
to the Protective Advances and the Overadvances pro rata, second, to
the Non-Ratable Loans, third, to pay scheduled principal installments
of the Term Loans in inverse order of maturity, fourth, to the
Revolving Loans, and fifth, to cash collateralize outstanding Facility
LCs; and (ii) insurance or condemnation proceeds from casualties or
losses to Equipment, Fixtures and real Property shall be applied first,
to pay the principal of the Protective Advances, second, to pay the
principal of the Non-Ratable Loans, third, to pay scheduled principal
installments of the Term Loans in inverse order of maturity, fourth, to
pay the principal of the Revolving Loans, and fifth, to cash
collateralize outstanding Facility LCs. The Revolving Commitment shall
not be permanently reduced by the amount of any such prepayments.
Notwithstanding anything to the contrary contained above or in any Loan
Document, (i) insurance or condemnation proceeds received by a
Singapore Borrower shall be applied only to the Singapore Revolving
Loans, and (ii) any insurance or condemnation proceeds received by any
Domestic Borrower with respect to any real Property shall be applied to
the Term B Loan.
(e) Term Loans. The Domestic Borrowers shall immediately
repay the (i) Term A Loans if at any time the principal amount of the
Term A Loans exceeds 80% of the Net Orderly Liquidation Value of the
Domestic Borrowers' machinery and equipment less any Reserves related
to the Domestic Borrowers, as determined in the Permitted Discretion of
the Agent, including, without limitation, the Clean-Up Reserve, to the
extent required to eliminate such excess, and (ii) the Term B Loans if
at any time the principal amount of the Term B Loans exceeds 70% of the
fair market value of the Domestic Borrowers' real property less any
Reserves related to the Domestic Borrowers, as determined in the
Permitted Discretion of the Agent, to the extent required to eliminate
such excess.
(f) General. Without in any way limiting the foregoing,
immediately upon receipt by any Loan Party of proceeds of any sale of
any Collateral, other than as provided in Section 6.19, the Company
shall cause such Loan Party to deliver such proceeds to the Agent, or
deposit such proceeds in a deposit account subject to a Deposit Account
Control Agreement. All of such proceeds shall be applied as set forth
above or otherwise as provided in Section 2.18. Nothing in this Section
2.15 shall be construed to constitute the Agent's or any Lender's
consent to any transaction that is not permitted by other provisions of
this Agreement or the other Loan Documents.
2.16. Termination of the Facility.
(a) Without limiting Section 2.3 or Section 8.1, (a) the
Aggregate Commitments shall expire on the Facility Termination Date and
(b) the Aggregate Credit Exposure and all other unpaid Obligations
shall be paid in full by the Borrowers on the Facility Termination
Date.
(b) The Borrowers may terminate this Agreement upon (i)
at least 10 Business Days' prior written notice thereof to the Agent
and the Lenders, (ii) the payment in full of all outstanding Loans,
together with accrued and unpaid interest thereon, (iii) the
cancellation and return of all outstanding Facility LCs (or
alternatively, with respect to each such Facility LC, the furnishing to
the Agent of a cash deposit or Supporting Letter of Credit as required
by Section 2.1.2(l)), (iv) the payment in full of the early termination
fee set forth in the following sentence (the "Prepayment Fee"), (v) the
payment in full of all reimbursable expenses and other Obligations
together with accrued and unpaid interest thereon, and (vi) the payment
in full of any amount due under Section 3.4. If this Agreement is
terminated at any time prior to the Facility Termination Date, whether
pursuant to this Section 2.16 or pursuant to Section 8.1, the Borrowers
shall pay to the
39
Agent, for the account of the Lenders in accordance with their
respective Pro Rata Shares of the Aggregate Revolving Commitment, an
early termination fee determined in accordance with the following
table:
Period during which early
termination occurs Prepayment Fee
-------------------------------------------------------------------
On or prior to the first anniversary of the 2% of the Aggregate
Closing Date Commitment
--------------------------------------------------------------------
After the first anniversary of the Closing 1% of the Aggregate
Date and prior to December 2, 2007 Commitment
--------------------------------------------------------------------
On and After December 2, 2007 None
--------------------------------------------------------------------
No such Prepayment Fee shall be payable in the event this Agreement is
terminated in connection with refinancing of the Obligations in a
transaction in which Bank One or one of its Affiliates that is a
banking institution provides or arranges a replacement bank credit
facility for the Borrowers.
2.17. Method of Payment.
(a) All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent or Singapore Correspondent Lender, as the
case may be, to such Lender's address specified pursuant to Article
XIII, or at any other Lending Installation of the Applicable Agent
specified in writing by the Agent to the Company, by 12:00 noon (local
time) on the date when due and shall be applied ratably by such
Applicable Agent among the Lenders. Any payment received by the
above-specified Lender after such time shall be deemed to have been
received on the following Business Day and any applicable interest or
fee shall continue to accrue. Each payment delivered to the
above-specified Lender for the account of any other Lender shall be
delivered promptly by such Lender to such other Lender in the same type
of funds that such Lender received.
(b) At the election of the Agent, all payments of
principal, interest, reimbursement obligations in connection with
Facility LCs, fees, premiums, reimbursable expenses (including, without
limitation, all reimbursement for fees and expenses pursuant to Section
9.6), and other sums payable under the Loan Documents, may be paid from
the proceeds of Advances made hereunder whether made following a
request by the Company pursuant to Section 2.1 or a deemed request as
provided in this Section 2.17 or may be deducted from the Funding
Account or any other deposit account of a Borrower maintained with the
Agent. The Borrowers hereby irrevocably authorize (i) the Agent to make
an Advance for the purpose of paying each payment of principal,
interest and fees as it becomes due hereunder or any other amount due
under the Loan Documents and agrees that all such amounts charged shall
constitute Loans (including Non-Ratable Loans, Overadvances and
Protective Advances) and that all such Advances shall be deemed to have
been requested pursuant to Section 2.1 and (ii) the Agent to charge any
Funding Account or any other deposit account of the Borrowers
maintained with Bank One for each payment of principal, interest and
fees as it becomes due hereunder or any other amount due under the Loan
Documents.
(c) Notwithstanding any other provision of this Agreement
to the contrary, all payments of Obligations hereunder by (i) a
Domestic Loan Party shall be made to the Agent or the Singapore
Correspondent Lender, and (ii) a Singapore Loan Party shall be made to
the Singapore Correspondent Lender.
2.18. Apportionment, Application and Reversal of Payments Except as
otherwise required pursuant to the provisions of this Agreement, principal and
interest payments shall be apportioned
40
ratably among the Lenders as set forth in this Article II and payments of the
fees shall, as applicable, be apportioned ratably among the Lenders, except for
fees payable solely to the Agent and the LC Issuer and except as provided in
this Article II. All payments and proceeds (other than those collected pursuant
to Section 16.2 and except as provided in the last sentence of this Section
2.18) shall be remitted to the Agent or the Singapore Correspondent Lender, as
the case may be, and all such payments and proceeds not relating to principal or
interest of specific Loans or not constituting payment of specific fees as
specified by the Borrowers, and all proceeds of any Collateral received by the
Agent or the Singapore Correspondent Lender, as the case may be, shall be
applied, ratably, subject to the provisions of this Agreement, first, to pay any
fees, indemnities, or expense reimbursements including amounts then due to the
Applicable Agent from the applicable Borrowers (other than in connection with
Banking Services or Rate Management Obligations), second, to pay any fees or
expense reimbursements then due to the Lenders from the applicable Borrowers
(other than in connection with Banking Services or Rate Management Obligations),
third, to pay interest due in respect of such Borrower's Loans, including
Non-Ratable Loans, Overadvances and Protective Advances, fourth, to pay or
prepay principal of the Non-Ratable Loans, Overadvances and Protective Advances,
fifth, to pay or prepay principal of the Loans (other than Non-Ratable Loans,
Overadvances and Protective Advances) and unpaid reimbursement obligations in
respect of Facility LCs, sixth, to pay an amount to the Agent equal to one
hundred five percent (105%) of the aggregate undrawn face amount of all
outstanding Facility LCs and the aggregate amount of any unpaid reimbursement
obligations in respect of Facility LCs, to be held as cash collateral for such
Obligations, seventh, to payment of any amounts owing with respect to Banking
Services and Rate Management Obligations of the Lenders, and eighth, to the
payment of any other Obligation due to the Agent or any Lender by the Borrowers
(including, without limitation, to the extent not covered by the proceeds of the
Export-Import Collateral, the Export-Import Loans). Notwithstanding anything to
the contrary contained in this Agreement, unless so directed by the Borrowers,
or unless a Default is in existence, neither the Agent nor any Lender shall
apply any payment which it receives to any Fixed Rate Loan, except (a) on the
expiration date of the Interest Period applicable to any such Fixed Rate Loan or
(b) in the event, and only to the extent, that there are no outstanding Floating
Rate Loans and, in any event, the applicable Borrowers shall pay the breakage
losses in accordance with Section 3.4. The Agent and the Lenders shall have the
continuing and exclusive right to apply and reverse and reapply any and all such
proceeds and payments to any portion of the Obligations. Furthermore,
notwithstanding anything to the contrary contained in this Agreement, (a) in no
event shall any payment made by any Singapore Borrower or any proceeds of
Collateral owned by any Singapore Borrower be applied to any Obligation other
than the Singapore Obligations; and (b) the proceeds of Export-Import Collateral
shall be applied directly to the payment of outstanding principal, accrued and
unpaid interest, and fees related to the Export-Import Loan, and, to the extent
any such proceeds remain after the Export-Import Loan is indefeasibly paid in
full, to the other Obligations as set forth above.
2.19. Settlement. Each Lender's funded portion of the Loans is
intended by the Lenders to be equal at all times to such Lender's Pro Rata Share
of the outstanding Loans. Notwithstanding such agreement, the Agent, Bank One,
and the Lenders agree (which agreement shall not be for the benefit of or
enforceable by the Loan Parties) that in order to facilitate the administration
of this Agreement and the other Loan Documents, settlement among them as to the
Loans, including the Non-Ratable Loans, Overadvances, and Protective Advances
shall take place on a periodic basis in accordance with the following
provisions:
(a) The Agent, except as otherwise provided in Section 2.2, shall
request settlement (a "Settlement") with the Lenders on at least a weekly basis,
or on a more frequent basis at the Agent's election, (i) for itself, with
respect to each Non-Ratable Loan, Overadvance and Protective Advance, and (ii)
with respect to collections received, in each case, by notifying the Lenders of
such requested Settlement by telecopy, telephone, or e-mail no later than 12:00
noon (local time) on the date of such requested Settlement (the "Settlement
Date"). Each Lender (other than the Agent, in the case of the Non-Ratable Loans,
Overadvances, and Protective Advances) shall transfer the amount of such
Lender's Pro Rata Share of the outstanding principal amount of the applicable
Loan with respect to which Settlement is requested to the Agent, to such account
of the Agent as the Agent may designate, not later than 2:00 p.m. (local time),
on the Settlement Date applicable thereto. Settlements may occur during the
existence of a Default or an Unmatured Default and whether or not the applicable
conditions precedent set forth in Section 4.2 have then
41
been satisfied. Such amounts transferred to the Agent shall be applied against
the amounts of the applicable Loan and, together with Bank One's Pro Rata Share
of such Non-Ratable Loan, Overadvance or Protective Advance, shall constitute
Loans of such Lenders, respectively. If any such amount is not transferred to
the Agent by any Lender on the Settlement Date applicable thereto, the Agent
shall be entitled to recover such amount on demand from such Lender together
with interest thereon as specified in Section 2.23.
(b) From and after the date, if any, on which any Lender is
required to fund its participation in any Non-Ratable Loan, Overadvance or
Protective Advance purchased pursuant to Section 2.2, the Agent shall promptly
distribute to such Lender, such Lender's Pro Rata Share of all payments of
principal and interest and all proceeds of Collateral received by the Agent in
respect of such Loan.
(c) The Agent shall pay all amounts it owes hereunder to the
Lenders in Dollars. The Singapore Correspondent Agent shall pay all amounts it
owes hereunder to the Lenders in Singapore Dollars. To the extent that any
Lender is unable to accept any such amount in Singapore Dollars, the Singapore
Correspondent Lender may, in its sole discretion, convert such amount into
Dollars at its then existing exchange rate, which may not be the lowest exchange
rate available, and remit such amounts to such Lender. The Singapore
Correspondent Lender shall not be liable to any Lender for action taken in
connection with converting currency pursuant to this subsection 2.19(c), except
with respect to mathematical miscalculations.
2.20. Indemnity for Returned Payments. If after receipt of any
payment which is applied to the payment of all or any part of the Obligations,
the Agent or any Lender is for any reason compelled to surrender such payment or
proceeds to any Person because such payment or application of proceeds is
invalidated, declared fraudulent, set aside, determined to be void or voidable
as a preference, impermissible setoff, or a diversion of trust funds, or for any
other reason, then the Obligations or part thereof intended to be satisfied
shall be revived and continued and this Agreement shall continue in full force
as if such payment or proceeds had not been received by the Agent or such Lender
and the Domestic Borrowers, or Singapore Borrower, as the case may be, shall be
liable to pay to the Agent and/or the Lenders, and such Borrower hereby
indemnifies the Agent and/or the Lenders and holds the Agent and/or the Lenders
harmless for the amount of such payment or proceeds surrendered. The provisions
of this Section 2.20 shall be and remain effective notwithstanding any contrary
action which may have been taken by the Agent or any Lender in reliance upon
such payment or application of proceeds, and any such contrary action so taken
shall be without prejudice to the Agent's and the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment or
application of proceeds having become final and irrevocable. The provisions of
this Section 2.20 shall survive the termination of this Agreement.
2.21. Notes; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of
each Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(b) The Agent and the Singapore Correspondent Lender
shall also maintain accounts in which it will record (i) the amount of
each Loan extended hereunder, the Type thereof and the Interest Period
with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from each Borrower to each
Lender hereunder, (iii) the original stated amount of each Facility LC
and the amount of LC Obligations outstanding at any time, and (iv) the
amount of any sum received by the Applicable Agent hereunder from each
Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained
pursuant to paragraphs (a) and (b) above shall be prima facie evidence
of the existence and amounts of the Obligations therein recorded;
provided however, that the failure of the Agent or any Lender to
maintain such accounts or
42
any error therein shall not in any manner affect the obligation of the
Borrowers to repay their respective Obligations in accordance with
their terms.
(d) The Loans by each Lender will be evidenced by a
promissory note in substantially the form of (i) Exhibit C-1 for
Domestic Revolving Loans (each, a "Domestic Revolving Note"), (ii)
Exhibit C-2 for Singapore Revolving Loans (each, a "Singapore Revolving
Note"), (iii) Exhibit C-3 for Term A Loans (each, a "Term A Note"), and
(iv) Exhibit C-4 for Term B Loans (each, a "Term B Note").
2.22. Lending Installations. Subject to the other provisions of this
Agreement, each Lender may book its Loans and its participation in any LC
Obligations and the LC Issuer may book the Facility LCs at any Lending
Installation selected by such Lender or the LC Issuer, as the case may be, and
may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility
LCs, participations in LC Obligations and any Notes issued hereunder shall be
deemed held by each Lender or the LC Issuer, as the case may be, for the benefit
of any such Lending Installation. Each Lender and the LC Issuer may, by written
notice to the Agent and the Borrowers in accordance with Article XIII, designate
replacement or additional Lending Installations through which Loans will be made
by it or Facility LCs will be issued by it and for whose account Loan payments
or payments with respect to Facility LCs are to be made.
2.23. Non-Receipt of Funds by the Agent. Unless a Borrower or a
Lender, as the case may be, notifies the Applicable Agent prior to the date on
which it is scheduled to make payment to the Applicable Agent of (i) in the case
of a Lender, the proceeds of a Loan or (ii) in the case of a Borrower, a payment
of principal, interest or fees to the Applicable Agent for the account of the
Lenders, that it does not intend to make such payment, the Applicable Agent may
assume that such payment has been made. The Applicable Agent may, but shall not
be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or a Borrower, as the
case may be, has not in fact made such payment to the Applicable Agent, the
recipient of such payment shall, on demand by the Applicable Agent, repay to the
Applicable Agent the amount so made available together with interest thereon in
respect of each day during the period commencing on the date such amount was so
made available by the Applicable Agent until the date the Applicable Agent
recovers such amount at a rate per annum equal to (x) in the case of payment by
a Lender, the Federal Funds Effective Rate for such day for the first three days
and, thereafter, the interest rate applicable to the relevant Loan or (y) in the
case of payment by a Borrower, the interest rate applicable to the relevant
Loan.
2.24. Consolidation of Substitute Notes. The Aggregate Commitment
evidenced by the Notes as of the Closing Date represents (a) the principal
amount of $2,500,000 outstanding as evidenced by a Substitute Note made by
Xxxxxxxx Advanced Materials Inc. to National City Bank and assigned to the Agent
pursuant to an assignment dated as of the Closing Date (the "Substitute Note"),
and (b) $102,500,000 advanced to or as may be advanced directly to the Borrowers
pursuant to the Notes. The Borrowers and the Lenders agree that the Indebtedness
evidenced by the Substitute Note constitutes an Obligation of the Borrowers, but
that such Indebtedness, after the Closing Date, shall be deemed to be
consolidated with the terms of the Notes, resulting in the Aggregate Commitment
being evidenced by the Notes, other than the Substitute Note.
2.25. Exchange Rate Fluctuations. The Agent shall at all times
monitor the Dollar Equivalent of all outstanding Singapore Advances. If, due to
changes in the exchange rate between Dollars and Singapore Dollars, the
Aggregate Singapore Exposure exceeds the Aggregate Singapore Commitment, then
the Agent may in its sole discretion, refuse to permit any further Singapore
Revolving Loans to be borrowed, continued or converted, or may require that the
Company or the Singapore Borrower, as the case may be, pay or prepay such
amounts in respect of any outstanding Loans as the Agent may require.
43
2.26. Full Recourse Obligations; Fraudulent Conveyance Matters. The
Borrowers and the Lenders desire and intend that the Obligations shall be joint
and several obligations and that the Obligations shall be enforced as full
recourse obligations of each of the Borrowers to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. In any action or proceeding involving any state corporate
law, or any state, federal or foreign bankruptcy, insolvency, reorganization or
other law affecting the rights of creditors generally, if the obligations of any
Borrower under this Agreement would otherwise be held or determined to be
avoidable, invalid or unenforceable on account of the amount of such Borrower's
liability under this Agreement, then, notwithstanding any other provision of
this Agreement to the contrary, the amount of such liability shall, without any
further action by the Borrowers or the Lenders, be automatically limited and
reduced to the highest amount that is valid and enforceable as determined in
such action or proceeding (such highest amount determined hereunder being the
relevant Borrower's "Maximum Borrower Liability"). This Section with respect to
the Maximum Borrower Liability of each Borrower is intended solely to preserve
the rights of the Lenders to the maximum extent not subject to avoidance under
applicable law, and no Borrower nor any other person or entity shall have any
right or claim under this Section with respect to such Maximum Borrower
Liability, except to the extent necessary so that the obligations of any
Borrower hereunder shall not be rendered voidable under applicable law. Each
Borrower agrees that the Secured Obligations may at any time and from time to
time exceed the Maximum Borrower Liability of each Borrower without impairing
this Agreement or affecting the rights and remedies of the Lenders hereunder,
provided that, nothing in this sentence shall be construed to increase any
Borrower's obligations hereunder beyond its Maximum Borrower Liability.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the Closing Date, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(a) subjects any Lender or any applicable Lending
Installation or the LC Issuer to any Taxes, or changes the basis of
taxation of payments (other than with respect to Excluded Taxes) to any
Lender or the LC Issuer in respect of its Fixed Rate Loans, Facility
LCs or participations therein, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation or the
LC Issuer (other than reserves and assessments taken into account in
determining the interest rate applicable to Fixed Rate Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
or the LC Issuer of making, funding or maintaining its Fixed Rate
Loans, or of issuing or participating in Facility LCs, or reduces any
amount receivable by any Lender or any applicable Lending Installation
or the LC Issuer in connection with its Fixed Rate Loans, Facility LCs
or participations therein, or requires any Lender or any applicable
Lending Installation or the LC Issuer to make any payment calculated by
reference to the amount of Fixed Rate Loans, Facility LCs or
participations therein held or interest or LC Fees received by it, by
an amount deemed material by such Lender or the LC Issuer as the case
may be,
44
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Fixed Rate Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Fixed Rate Loans, Commitment, Facility LCs or participations therein, then,
within 15 days of demand by such Lender or the LC Issuer, as the case may be,
the Borrowers shall pay such Lender or the LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the LC Issuer, as
the case may be, for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations.
(a) General. If a Lender or the LC Issuer determines the
amount of capital required or expected to be maintained by such Lender
or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer, or any corporation controlling such Lender or the LC Issuer is
increased as a result of a Change (as defined below), then, within 15
days of demand by such Lender or the LC Issuer, the Borrowers shall pay
such Lender or the LC Issuer the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased
capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Credit Exposure or its Commitment to make Loans
and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as
to capital adequacy). "Change" means (i) any change after the Closing
Date in the Risk-Based Capital Guidelines (as defined below) or (ii)
any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation,
or directive (whether or not having the force of law) after the Closing
Date which affects the amount of capital required or expected to be
maintained by any Lender or the LC Issuer or any Lending Installation
or any corporation controlling any Lender or the LC Issuer. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the U.S. on the Closing Date, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory
authorities outside the U.S. implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices
Entitled "International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to such
regulations adopted prior to the Closing Date.
(b) Non-U.S. Reserve Costs or Fees. If any law or any
governmental or quasi-governmental rule, regulation, policy, guideline
or directive of any jurisdiction outside of the United States of
America or any subdivision thereof (whether or not having the force of
law), imposes or deems applicable any reserve requirement against or
fee with respect to assets of, deposits with or for the account of, or
credit extended by, any Lender or any applicable Lending Installation,
and the result of the foregoing is to increase the cost to such Lender
or applicable Lending Installation of making or maintaining its Fixed
Rate Loans to any Borrower that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Borrower") or its Commitment to any Non-U.S. Borrower or to reduce the
return received by such Lender or applicable Lending Installation in
connection with such Fixed Rate Loans to any Non-U.S. Borrower or
Commitment to any Non-U.S. Borrower, then, within 15 days of demand by
such Lender, such Non-U.S. Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received, provided that such
Non-U.S. Borrower shall not be required to compensate any Lender for
such non-U.S. reserve costs or fees to the extent that an amount equal
to such reserve costs or fees is received by such Lender as a result of
the calculation of the interest rate applicable to Fixed Rate Advances
pursuant to the definition of "Eurodollar Rate."
3.3. Availability of Types of Advances. If any Lender determines
that maintenance of its Fixed Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive,
45
whether or not having the force of law, or if the Required Lenders determine
that (i) deposits of a type and maturity appropriate to match fund Fixed Rate
Advances are not available or (ii) the interest rate applicable to Fixed Rate
Advances does not accurately reflect the cost of making or maintaining Fixed
Rate Advances, then the Agent shall suspend the availability of Fixed Rate
Advances and require any affected Fixed Rate Advances to be repaid or converted
to Floating Rate Advances, subject to the payment of any funding indemnification
amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Fixed Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a Fixed
Rate Advance is not made on the date specified by the Borrowers, for any reason
other than default by the Lenders, the Borrowers will, jointly and severally,
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain such Fixed Rate Advance.
3.5. Taxes.
(a) All payments by the Borrowers to or for the account
of any Lender, the LC Issuer or the Agent hereunder or under any Note
or Facility LC Application shall be made free and clear of and without
deduction for any and all Taxes. If any Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder
to any Lender, the LC Issuer or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.5) such Lender, the LC Issuer or the Agent (as the case may
be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) such Borrower shall make such
deductions, (iii) such Borrower shall pay the full amount deducted to
the relevant authority in accordance with applicable law and (iv) such
Borrower shall furnish to the Agent the original copy of a receipt
evidencing payment thereof within thirty days after such payment is
made.
(b) In addition, the Borrowers hereby agree, jointly and
severally, to pay any present or future stamp or documentary taxes and
any other excise or property taxes, charges or similar levies which
arise from any payment by them made hereunder or under any Note or
Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC
Application ("Other Taxes").
(c) The Borrowers hereby agree, jointly and severally, to
indemnify the Agent, the LC Issuer and each Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed on amounts payable under this Section 3.5) paid by
the Agent, the LC Issuer or such Lender as a result of its Commitment,
any Loans made by it hereunder, any Facility LC issued hereunder or
otherwise in connection with its participation in this Agreement and
any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within thirty days of the date the Agent,
the LC Issuer or such Lender makes demand therefor pursuant to
Section 3.6.
(d) Each Lender that is not incorporated under the laws
of the U.S. or a state thereof (each a "Non-U.S. Lender") agrees that
it will, not more than five days after the date that it enters into
this Agreement, (i) deliver to the Company and the Agent two duly
completed copies of U.S. Internal Revenue Service Form W-8BEN or
W-8ECI, certifying in either case that such Lender is entitled to
receive payments under this Agreement without deduction or withholding
of any U.S. federal income taxes, and (ii) deliver to the Agent a U.S.
Internal Revenue Form W-8 or W-9, as the case may be, and certify that
it is entitled to an exemption from U.S. backup withholding tax, along
with any additional certifications reasonably required by the Company
attesting to such Non-U.S. Lender's qualification for exemption from
withholding tax. Each Non-U.S. Lender further undertakes to deliver to
the Company's and the Agent (x) renewals or additional copies of such
form
46
(or any successor form) on or before the date that such form expires or
becomes obsolete, and (y) after the occurrence of any event requiring a
change in the most recent forms so delivered by it, such additional
forms or amendments thereto as may be reasonably requested by the
Company or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Non-U.S. Lender is entitled
to receive payments under this Agreement without deduction or
withholding of any U.S. federal income taxes, unless an event
(including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or
which would prevent such Non-U.S. Lender from duly completing and
delivering any such form or amendment with respect to it and such
Non-U.S. Lender advises the Company and the Agent that it is not
capable of receiving payments without any deduction or withholding of
U.S. federal income tax.
(e) For any period during which a Non-U.S. Lender has
failed to provide the Company with the form specified in the first
sentence of Section 3.5(d) above (unless such failure is due to a
change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
payment under this Section 3.5 with respect to Taxes imposed by the
U.S. attributable to such failure; provided that, should a Non-U.S.
Lender which is otherwise exempt from or subject to a reduced rate of
withholding tax become subject to Taxes because of its failure to
deliver a form required under Section 3.5(d), above, the Company shall
take such steps as such Non-U.S. Lender shall reasonably request to
assist such Non-U.S. Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrowers (with a copy to the
Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable
law as will permit such payments to be made without withholding or at a
reduced rate. If any such Lender applies for relief, as required by
below, but is denied such relief, it shall deliver to the Company (with
a copy to the Agent), the appropriate documentation setting forth the
reason for such denial, and the Borrowers shall continue to make the
payments required pursuant to subsection 3.5(a).
(g) If the U.S. Internal Revenue Service or any other
governmental authority of the U.S. or any other country or any
political subdivision thereof asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly
completed, because such Lender failed to notify the Agent of a change
in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent
as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of
attorneys for the Agent, which attorneys may be employees of the
Agent). The obligations of the Lenders under this Section 3.5(g) shall
survive the payment of the Obligations and termination of this
Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Fixed Rate Loans to reduce any liability of the
Borrowers to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of Fixed Rate Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Company (with a copy to the Agent), as to the amount due, if any, under Section
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined
47
such amount and shall be final, conclusive and binding on the Borrowers in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Fixed Rate Loan shall be calculated as though each Lender
funded its Fixed Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
interest rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein and absent manifest error, the amount specified
in the written statement of any Lender shall be payable on demand after receipt
by the Company of such written statement. The obligations of the Borrowers under
Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and
termination of this Agreement, and in the case of obligations under Section 3.5,
shall terminate upon the expiration of all statute of limitation periods
applicable to the final tax year in which this Agreement is in effect.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness. This Agreement will not become effective unless
the Loan Parties have satisfied each of the following conditions in a manner
satisfactory to the Agent and the Lenders, and with respect to any condition
requiring delivery of any agreement, certificate, document, or instrument, the
Loan Parties shall have furnished to the Agent the requested number of copies of
any such agreement, certificate, document, or instrument for distribution to the
Lenders.
(a) This Agreement or counterparts hereof shall have been
duly executed by each Loan Party, the Agent and the Lenders; and the
Agent shall have received duly executed copies of the Loan Documents
and such other documents, instruments, agreements and legal opinions as
the Agent shall reasonably request in connection with the transactions
contemplated by this Agreement and the other Loan Documents, each in
form and substance reasonably satisfactory to the Agent.
(b) Each Loan Party shall have delivered copies of its
articles or certificate of incorporation or organization, together with
all amendments, and certificates of good standing for each jurisdiction
in which such Loan Party is qualified to do business, each certified by
the appropriate governmental officer in its jurisdiction of
incorporation or organization, as well as any other information
required by Section 326 of the USA Patriot Act or necessary for the
Agent or any Lender to verify the identity of each Loan Party as
required by Section 326 of the USA Patriot Act.
(c) Each Loan Party shall have delivered copies,
certified by its secretary, treasurer, assistant secretary or assistant
treasurer, of its governing documents and of the resolutions of the
body authorizing the execution, delivery and performance of the Loan
Documents to which such Loan Party is a party.
(d) Each Loan Party shall have delivered an incumbency
certificate, executed by its secretary, treasurer, assistant secretary
or assistant treasurer , which shall identify by name and title and
bear the signatures of the Authorized Officers and any other officers
such Loan Party authorized to sign the Loan Documents to which such
Loan Party is a party, upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in writing by
such Loan Party.
(e) Each Borrower and the other Loan Parties shall have
delivered a certificate, signed by the chief financial officer,
treasurer or assistant treasurer, or secretary or assistant secretary
of the Borrower and each other Loan Party, on the initial Credit
Extension Date (i) stating that no Default or Unmatured Default has
occurred and is continuing, (ii) stating that the representations and
warranties contained in Article V are true and correct as of such
Credit Extension Date, (iii) specifying the deposit account at Bank One
which shall be used as the Funding Account, and (iv) certifying any
other factual matters as may be reasonably requested by the Agent or
any Lender.
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(f) The Loan Parties shall have delivered a written
opinion of the Loan Parties' counsel, addressed to the Agent, the LC
Issuer and the Lenders in substantially the form of Exhibit D.
(g) Each Borrower shall have delivered the Notes required
by a Lender pursuant to Section 2.21 payable to the order of each such
requesting Lender.
(h) Each Borrower shall have delivered money transfer
authorizations as the Agent may have reasonably requested.
(i) The Loan Parties shall have delivered, with respect
to each parcel of real Property which is required to be subject to a
Lien in favor of the Agent, each of the following, in form and
substance reasonably satisfactory to the Agent:
(i) a Mortgage on such real Property;
(ii) evidence that a counterpart of the Mortgage
has been recorded in the place necessary, in the Agent's
judgment, to create a valid and enforceable first priority
Lien in favor of the Agent for the benefit of itself and the
Lenders;
(iii) ALTA or other mortgagee's title policy;
(iv) an ALTA survey prepared and certified to the
Agent by a surveyor acceptable to the Agent;
(v) an opinion of counsel in the state in which
such parcel of real Property is located in form and substance
and from counsel reasonably satisfactory to the Agent; and
(vi) such other information, documentation, and
certifications as may be reasonably required by the Agent.
(j) The Agent shall have received a fully executed
original of a pay-off letter reasonably satisfactory to the Agent
confirming that all of the Loan Parties' obligations under that certain
Credit Agreement among the Company, Brush Xxxxxxx Inc. and National
City Bank, and the Master Lease Agreement dated December 30, 1996,
among Brush Xxxxxxx Inc., National City Bank and the participants
thereto (together, as amended, the "Prior Agreements") will be repaid
in full from the proceeds of the initial Credit Extension, all Liens
upon any of the property of the Loan Parties constituting Collateral
will be terminated immediately upon such payment and all letters of
credit issued or guaranteed under the Prior Agreements shall have been
cash collateralized or supported by a Facility LC, as mutually agreed
upon by the Agent, the Borrowers and Prior Agreement lenders.
(k) The Agent shall have received all Lien and other
searches that the Agent deems necessary, the Loan Parties shall have
delivered UCC termination statements or amendments to existing UCC
financing statements (to be filed after the Closing) with respect to
any filings against the Collateral (other than by The Bank of Nova
Scotia in connection with a Permitted Precious Metals Agreement, or
related to other Permitted Liens) as may be requested by the Agent and
shall have authorized the filing of such termination statements or
amendments, the Agent shall have been authorized to file any UCC
financing statements that the Agent deems necessary to perfect its
Liens in the Collateral and Liens creating a first priority security
interest in the Collateral (except for Collateral subject to a Lien in
favor of any lender under a Permitted Precious Metals Agreement and
other Permitted Liens) in favor of the Agent shall have been perfected.
49
(l) The Borrowers shall have delivered an Aggregate
Borrowing Base Certificate which calculates the Aggregate Borrowing
Base as of the end of the Friday immediately preceding the Closing
Date, together with a Borrowing Base Certificate for each Borrower that
calculates such Borrower's Borrowing Base as of the end of the Friday
immediately preceding the Closing Date.
(m) The Borrowers shall have delivered to the Agent and
the Lenders the unaudited consolidated financial statements of the
Company and its Subsidiaries for the year-to-date period ending on
September 26, 2003.
(n) The Agent shall have completed its business due
diligence and the Loan Parties' corporate structure, capital structure,
material accounts and governing documents shall be reasonably
acceptable to the Agent. In addition, the terms and conditions of all
Indebtedness of each Loan Party shall be reasonably acceptable to the
Agent.
(o) All legal (including tax implications) and regulatory
matters, including, but not limited to compliance with applicable
requirements of Regulations U, T and X of the Board of Governors of the
Federal Reserve System, shall be satisfactory to the Agent and the
Lenders.
(p) The Loan Parties shall have delivered (i) Collateral
audits, reasonably satisfactory to the Agent, and (ii) appraisals,
prepared by an independent appraiser reasonably acceptable to engaged
directly by the Agent, of each parcel of real Property or interest in
real Property described in the Mortgages, including an appraisal of the
mine in Delta, Utah performed by Xxxxx and Xxxxxxx, which appraisals
satisfy the requirements of the Financial Institutions Reform, Recovery
and Enforcement Act, as amended, and the regulations promulgated
thereunder, if applicable, and which shall evidence compliance with the
supervisory loan-to-value limits set forth in the Federal Deposit
Insurance Corporation Improvement Act of 1991, as amended, and the
regulations promulgated thereunder, if applicable, which audits and
appraisals shall be satisfactory to the Agent, together with evidence
of compliance with applicable federal regulations governing loans in
areas having special flood hazards.
(q) The Loan Parties shall have delivered any requested
environmental review reports from firm(s) satisfactory to the Agent,
which review reports shall be acceptable to the Agent. Any
environmental hazards or liabilities identified in any such
environmental review reports shall indicate the Loan Parties' plans
with respect thereto.
(r) Each Loan Party shall have delivered evidence of
insurance coverage in form, scope, and substance reasonably
satisfactory to the Agent and otherwise in compliance with the terms of
Section 6.7.
(s) Each Loan Party shall have delivered each Collateral
Access Agreement that it has obtained prior to Closing and which is
required to be provided pursuant to Section 6.12.
(t) Each Loan Party shall have delivered each Deposit
Account Control Agreement required to be provided pursuant to Section
6.13.
(u) The Agent shall have determined that (i) since
September 26, 2003, there is an absence of any material adverse change
or disruption in primary or secondary loan syndication markets,
financial markets or in capital markets generally that would likely
impair syndication of the Credit Extensions hereunder and (ii) the Loan
Parties shall have fully cooperated with the Agent's syndication
efforts including, without limitation, by providing the Agent with
information regarding the Loan Parties' operations and prospects and
such other information as the Agent deems necessary to successfully
syndicate the Credit Extensions hereunder.
50
(v) The Company shall have delivered a properly completed
Facility LC Application if the initial Credit Extension will include
the issuance of a Facility LC.
(w) After giving effect to all Credit Extensions to be
made on the Closing Date and payment of all fees and expenses due
hereunder, and with all of the Loan Parties' indebtedness, liabilities,
and obligations current, the Domestic Availability shall not be less
than $15,000,000.
(x) The Borrowers shall have paid all of the fees and
expenses owing to the Agent, the Arranger, the LC Issuer and the
Lenders pursuant to Section 2.10(c), and Section 9.6(a), and any fees
due and owing with respect to the Export-Import Loan Documents.
(y) The Borrowers shall have delivered to the Agent its
most recent statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled under ERISA.
(z) The Borrowers shall have executed and delivered to
the Agent all of the Export-Import Loan Documents.
(aa) The Loan Parties shall have delivered such
other documents as the Agent, the LC Issuer, any Lender or their
respective counsel may have reasonably requested.
4.2. Each Credit Extension. Except as otherwise expressly provided
herein, the Lenders shall not be required to make any Credit Extension if on the
applicable Credit Extension Date:
(a) There exists any Default or Unmatured Default or any
Default or Unmatured Default shall result from any such Credit
Extension and the Agent or the Required Lenders shall have determined
not to make any Credit Extension as a result of such Default or
Unmatured Default.
(b) Any representation or warranty contained in Article V
is untrue or incorrect as of such Credit Extension Date except to the
extent any such representation or warranty is stated to relate solely
to an earlier date, and the Agent or the Required Lenders shall have
determined not to make any Credit Extension as a result of the fact
that such representation or warranty is untrue or incorrect.
(c) After giving effect to any Credit Extension, there is
no Domestic Availability or Singapore Availability, as applicable.
(d) Any legal matter incident to the making of such
Credit Extension shall not be satisfactory to the Agent and its
counsel.
Each Borrowing Notice or request for issuance of Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by the Borrowers that the conditions contained in Sections 4.2(a) and
(b) have been satisfied. The Agent may require a duly completed Compliance
Certificate as a condition to making a Credit Extension.
4.3. Post-Closing Conditions.
(a) Except as otherwise provided herein, the Lenders shall not be
required to make any Credit Extensions if within thirty (30) days after the
Closing Date the Borrowers have not (i) notified their Account Debtors that all
remittances shall be sent to the Agent and the Agent shall have received
evidence reasonably satisfactory to the Agent that such notification has been
given, and (ii) used their commercially reasonable efforts to cause each such
Account Debtor to comply with such request.
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(b) Except as otherwise provided herein, the Lenders shall not be
required to make any Credit Extensions if within ninety (90) days after the
Closing Date the Borrowers have not closed all of their accounts with National
City Bank and replaced such accounts with accounts with the Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Agent and the Lenders as
follows:
5.1. Existence and Standing. Each Loan Party is a corporation,
partnership (in the case of Subsidiaries only) or limited liability company duly
and properly incorporated or organized, as the case may be, validly existing and
(to the extent such concept applies to such entity) in good standing or full
force and effect under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2. Authorization and Validity. Each Loan Party has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by each Loan Party of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
proceedings, and the Loan Documents to which such Loan Party is a party
constitute legal, valid and binding obligations of such Loan Party enforceable
against such Loan Party in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and except as the same may be subject
to general principles of equity.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by any Loan Party of the Loan Documents to which it is a party, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on such Loan Party or (ii) any
Loan Party's memorandum, articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of organization,
by-laws, code of regulations, or operating or other management agreement, as the
case may be, or (iii) the provisions of any indenture, instrument or agreement
to which any Loan Party is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien (other than a
Permitted Lien) in, of or on the Property of such Loan Party pursuant to the
terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing
(other than the filing of the appropriate Collateral Documents), recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by a Loan Party, is required to be obtained by any Loan Party
in connection with the execution and delivery of the Loan Documents, the
borrowings under this Agreement, the payment and performance by the Loan Parties
of the Obligations or the legality, validity, binding effect or enforceability
of any of the Loan Documents.
5.4. Security Interest in Collateral. The provisions of this
Agreement and the other Loan Documents create legal and valid Liens on all the
Collateral in favor of the Agent, for the benefit of the Agent and the Lenders,
and provided that the Agent does what is required to continue the perfection of
such Liens under the UCC, such Liens constitute perfected and continuing Liens
on the Collateral, securing the Obligations, enforceable against the applicable
Loan Party and all third parties, and having priority over all other Liens on
the Collateral except in the case of (a) Permitted Liens, to the extent any such
Permitted Liens would have priority over the Liens in favor of the applicable
agent and Lenders pursuant to any applicable law or agreement and (b) Liens
perfected only by possession (including possession of any certificate of title)
52
to the extent the Agent or the Singapore Correspondent Lender has not obtained
or does not maintain possession of such Collateral.
5.5 Financial Statements.
(a) The audited consolidated financial statements of the
Company and its Subsidiaries for the period ending on December 31, 2002
heretofore delivered to the Agent and each of the other financial
statements now or hereafter delivered pursuant to Section 6.1 were
prepared in accordance with GAAP (as in effect on the date such
statements were prepared) and fairly present the consolidated financial
condition and operations of the Company and its Subsidiaries at such
date and the consolidated results of their operations for the period
then ended. The unaudited consolidated financial statements of the
Company and its Subsidiaries for the Fiscal Quarter ended September 26,
2003 heretofore delivered by the Company to the Agent and the Lenders
were prepared in accordance with GAAP (as in effect on the date such
statements were prepared except for the presentation of footnotes and
for applicable normal year-end audit adjustments) and fairly present
the consolidated financial condition and operations of the Company and
its Subsidiaries at such date and the consolidated results of their
operations for the period then ended.
(b) The most recent Projections delivered to the Agent
pursuant to Section 6.1(d), represent the Company's good faith estimate
(based on assumptions that the Company believed at the time to be
reasonable) of the future consolidated financial performance of the
Company and its Subsidiaries for the period set forth therein.
5.6. Material Adverse Change. Since December 31, 2002, there has
been no change in the business, Property, condition (financial or otherwise) or
results of operations of the Loan Parties which could reasonably be expected to
have a Material Adverse Effect.
5.7. Taxes. The Loan Parties have filed all U.S. federal, state and
local tax returns and all other tax returns which are required to be filed and
have paid all material taxes due pursuant to said returns or pursuant to any
assessment received by any Loan Party, except such taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided in
accordance with GAAP and as to which no Lien exists. No tax liens have been
filed and no claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of the Loan Parties in respect of
any taxes or other governmental charges are adequate. If any Loan Party is a
limited liability company, each such limited liability company qualifies for
partnership tax treatment under U.S. federal tax law.
5.8. Litigation and Contingent Obligations. Except as set forth on
Schedule 5.8, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting any Loan Party or ERISA Plan which could
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Credit Extensions. Other than any
liability incident to any litigation, arbitration or proceeding which (i) could
not reasonably be expected to have a Material Adverse Effect or (ii) is set
forth on Schedule 5.8, no Loan Party has any material Contingent Obligations not
provided for or disclosed in the financial statements referred to in Section
5.5.
5.9. Subsidiaries and Capitalization. Schedule 5.9 sets forth (a) a
correct and complete list of the name and relationship to each Loan Party of
each other Loan Party and all of their Subsidiaries, (b) the location of the
chief executive office of each Loan Party and each of its Subsidiaries and each
other location where any of them have maintained their chief executive office in
the past five years, (c) a true and complete listing of each class of each Loan
Party's authorized Capital Stock, of which all of such issued shares are validly
issued, outstanding, fully paid and non-assessable, and owned beneficially and
of record by the Persons identified on Schedule 5.9, and (d) the type of entity
of each Loan Party and each of its Subsidiaries. With respect to each Loan
Party, Schedule 5.9 also sets forth the employer or taxpayer identification
number
53
of each Loan Party and the organizational identification number issued by
each Loan Party's jurisdiction of organization or a statement that no such
number has been issued. All of the issued and outstanding Capital Stock of any
Loan Party has been (to the extent such concepts are relevant with respect to
such ownership interests) duly authorized and issued and is fully paid and
non-assessable.
5.10. ERISA. As of May 31, 2003, the Unfunded Liabilities of all
Single Employer Plans do not in the aggregate exceed $30,000,000 for the
Domestic Loan Parties. No Loan Party or any other member of the Controlled Group
is party, or has any obligation with respect, to any Multiemployer Plan. No Loan
Party or any other member of the Controlled Group has incurred, or is reasonably
expected to incur, any excise tax or penalty relating to an ERISA Plan, any
material liability to the PBGC or any withdrawal liability to Multiemployer
Plans. Each ERISA Plan complies and has been administered in all material
respects with all applicable requirements of law and regulations, no Reportable
Event, prohibited transaction (as defined in ERISA Section 406 or Code Section
4975) or breach of fiduciary duty under ERISA has occurred with respect to any
Plan, no Loan Party or any other member of a Controlled Group has withdrawn from
any Plan or initiated steps to do so, and no steps have been taken to terminate
any Plan.
5.11. Accuracy of Information. No information, exhibit or report
furnished by any Loan Party to the Agent or to any Lender in connection with the
negotiation of, or compliance with, the Loan Documents taken as a whole
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading at
the time made and in light of the circumstances in which such facts were
presented.
5.12. Names; Prior Transactions. Except as set forth on Schedule
5.12, the Loan Parties have not, during the past five years, been known by or
used any other corporate or fictitious name, or been a party to any merger or
consolidation, or been a party to any Acquisition.
5.13. Regulation U. No Loan Party is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" as such
terms are defined in Regulation U of the Federal Reserve Board as now and from
time to time hereafter in effect (such securities being referred to herein as
"Margin Stock"). No Loan Party owns any Margin Stock, and none of the proceeds
of the Loans or other extensions of credit under this Agreement will be used,
directly or indirectly, for the purpose of purchasing or carrying any Margin
Stock, for the purpose of reducing or retiring any Indebtedness that was
originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any of the Loans or other extensions of credit under
this Agreement to be considered a "purpose credit" within the meaning of
Regulations T, U or X of the Federal Reserve Board. No Loan Party will take or
permit to be taken any action that might cause any Loan Document to violate any
regulation of the Federal Reserve Board.
5.14. Material Agreements. Schedule 5.14 hereto sets forth as of the
Closing Date all material agreements and contracts (for purposes of this
Section, defined as those agreements and contracts required to be filed by the
Company with the United States Securities and Exchange Commission with the
Company's periodic reports) to which any Loan Party is a party or is bound as of
the date hereof. No Loan Party is subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect. No Loan Party is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any material agreement to which it is a party or (ii) any agreement or
instrument evidencing or governing Material Indebtedness.
5.15. Compliance With Laws. The Loan Parties have complied in all
material respects with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property.
54
5.16. Ownership of Properties. Except as set forth on Schedule 5.16,
on the date of this Agreement, the Loan Parties will have good title, free of
all Liens other than those permitted by Section 6.21, to all of the Property
reflected in the Loan Parties' most recent consolidated financial statements
provided to the Agent as owned by the Loan Parties.
5.17. Plan Assets; Prohibited Transactions. No Borrower is an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and neither the execution of this Agreement nor the making of Credit
Extensions hereunder gives rise to a prohibited transaction within the meaning
of Section 406 of ERISA or Section 4975 of the Code.
5.18. Environmental Matters. In the ordinary course of its business,
the officers of each Loan Party consider the effect of Environmental Laws on the
business of such Loan Party, in the course of which they identify and evaluate
potential risks and liabilities accruing to such Loan Party due to Environmental
Laws. Except as set forth on Schedule 5.18, the Loan Parties have complied with
all Environmental Laws in all material respects and no Loan Party has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment.
5.19. Investment Company Act. No Loan Party is an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
5.20. Public Utility Holding Company Act. No Loan Party is a
"holding company" or a "subsidiary company" of a "holding company," or an
"Affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
5.21. Bank Accounts. Exhibit B to the Security Agreement contains a
complete and accurate list of all bank accounts (other than xxxxx cash accounts
with a balance of less than $5,000) maintained by each Loan Party with any bank
or other financial institution.
5.22. Indebtedness. The Loan Parties have no Indebtedness, except
for (a) the Obligations, and (b) any Indebtedness described on Schedule 5.22 and
(c) Indebtedness arising under any Permitted Precious Metals Agreement.
5.23. Affiliate Transactions. Except as set forth on Schedule 5.23,
there are no existing or proposed agreements, arrangements, understandings, or
transactions between any Loan Party and any of the officers, members, managers,
directors, stockholders, parents, other interest holders, employees, or
Affiliates (other than Subsidiaries) of any Loan Party or any members of their
respective immediate families, and none of the foregoing Persons are directly or
indirectly indebted to or have any direct or indirect ownership, partnership, or
voting interest in any Affiliate of any Loan Party or any Person with which any
Loan Party has a business relationship or which competes with any Loan Party.
5.24. Real Property; Leases. Schedule 5.24 sets forth a correct and
complete list of all real Property owned by each Loan Party, all material leases
and subleases of real Property by each Loan Party as lessee or sublessee, and
all leases and subleases of real Property by each Loan Party as lessor or
sublessor. For purposes of the foregoing sentence, "material" shall mean a lease
or sublease related to a location where Inventory in excess of $1,000,000 is
located. Each of such leases and subleases is valid and enforceable in
accordance with its terms and is in full force and effect, and no default by any
Loan Party, or to the knowledge of the Loan Parties, by any other party to any
such lease or sublease exists. Each Loan Party has
55
good and indefeasible title in fee simple to the real Property identified on
Schedule 5.24 as owned by such Loan Party, or valid leasehold interests in all
real Property designated therein as "leased" by such Loan Party.
5.25. Intellectual Property Rights. (a) Schedule 5.25 sets forth a
correct and complete list of all registered Intellectual Property Rights of each
Loan Party; (b) none of the Intellectual Property Rights listed in Schedule 5.25
is subject to any material licensing agreement or similar arrangement except as
set forth in Schedule 5.25; (c) the Intellectual Property Rights described in
Schedule 5.25 constitute all of the material property of such type necessary to
the current and anticipated future conduct of the Loan Parties' business; (d) to
the Loan Party's knowledge, no Intellectual Property Right now contemplated to
be employed, by any Loan Party infringes in any material respect upon any rights
held by any other Person; and (e) no claim or litigation regarding any of the
foregoing is pending or, to the knowledge of any Loan Party, threatened.
5.26. Insurance. The Loan Parties maintain, with financially sound
and reputable insurers, insurance with coverage and limits as required by law
and (except to the extent self-insured by the Loan Parties) as is customary with
Persons engaged in the same or substantially similar lines of business as the
Loan Parties. Schedule 5.26 lists all insurance policies of any nature
maintained by each Loan Party, as well as a summary of the terms of each such
policy.
5.27. Solvency.
(a) Immediately after the making of each Credit
Extension, and after giving effect to the application of the proceeds
of such Credit Extensions, (i) the fair value of the assets of each
Loan Party, at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of each Loan Party; (ii) the
present fair saleable value of the Property of each Loan Party will be
greater than the amount that will be required to pay the probable
liability of each Loan Party on its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) each Loan Party will be
able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured;
and (iv) each Loan Party will not have unreasonably small capital with
which to conduct the businesses in which it is engaged as such
businesses are now conducted and are proposed to be conducted after the
date hereof.
(b) The Borrowers do not intend to, or to permit any of
their Subsidiaries to, and do not believe that it or any of the
Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to
be received by them or any such Subsidiary and the timing of the
amounts of cash to be payable on or in respect of its Indebtedness or
the Indebtedness of any such Subsidiary.
5.28. Subordinated Indebtedness. The Secured Obligations constitute
senior indebtedness which is entitled to the benefits of the subordination
provisions of all outstanding Subordinated Indebtedness.
5.29. Post-Retirement Benefits. As of January 1, 2003, the aggregate
actuarial present value of the expected cost of post-retirement medical and
insurance benefits payable by each Domestic Loan Party to its employees and
former employees, as estimated by such Domestic Loan Party in accordance with
procedures and assumptions deemed reasonable by the Required Lenders, does not
exceed $46,000,000.
5.30. Common Enterprise. The successful operation and condition of
each of the Loan Parties is dependent on the continued successful performance of
the functions of the group of the Loan Parties as a whole and the successful
operation of each of the Loan Parties is dependent on the successful performance
and operation of each other Loan Party. Each Loan Party expects to derive
benefit (and its board of directors or other governing body has determined that
it may reasonably be expected to derive benefit), directly and indirectly, from
(i) successful operations of each of the other Loan Parties and (ii) the credit
extended by the
56
Lenders to the Borrowers hereunder, both in their separate capacities and as
members of the group of companies. Each Loan Party has determined that
execution, delivery, and performance of this Agreement and any other Loan
Documents to be executed by such Loan Party is within its purpose, will be of
direct and indirect benefit to such Loan Party, and is in its best interest.
5.31. Reportable Transaction. The Domestic Borrowers do not intend
to treat the Advances and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4). In
the event the Domestic Borrowers determine to take any action inconsistent with
such intention, they will promptly notify the Agent thereof.
5.32. Labor Disputes. Except as set forth on Schedule 5.32, as of
the Closing Date (a) there is no collective bargaining agreement or other labor
contract covering employees of the Borrowers or any of their Subsidiaries, (b)
no such collective bargaining agreement or other labor contract is scheduled to
expire during the term of this Agreement, (c) no union or other labor
organization is seeking to organize, or to be recognized as, a collective
bargaining unit of employees of the Borrowers or any of their Subsidiaries or
for any similar purpose, and (d) there is no pending or (to the Borrowers'
knowledge) threatened, strike, work stoppage, material unfair labor practice
claim, or other material labor dispute against or affecting the Borrowers or
their Subsidiaries or their employees.
5.33. Specifically Designated National and Blocked Persons. No Loan
Party or any of its Affiliates is a country, individual, or entity named on the
Specifically Designated National and Blocked Persons (SDN) list issued by the
Office of Foreign Asset Control of the Department of the Treasury of the United
States of America.
ARTICLE VI
COVENANTS
Each Loan Party executing this Agreement jointly and severally agrees
as to all Loan Parties that from and after the date hereof and until the
Facility Termination Date:
6.1. Financial and Collateral Reporting. Each Loan Party will
maintain, for itself and each Subsidiary, a system of accounting established and
administered in accordance with GAAP, and will furnish to the Agent on behalf of
the Lenders:
(a) within 90 days after the close of each Fiscal Year of
the Company and its Subsidiaries, an unqualified audit report certified
by independent certified public accountants acceptable to the Required
Lenders, prepared in accordance with GAAP on a consolidated and
consolidating basis (consolidating statements need not be certified by
such accountants), including balance sheets as of the end of such
Fiscal Year, related profit and loss statements, and a statement of
cash flows, accompanied by (i) a management letter prepared by said
accountants, if any, and (ii) a certificate of said accountants that,
in the course of their examination necessary for their certification of
the foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such accountants, any
Default or Unmatured Default shall exist, stating the nature and status
thereof;
(b) within 45 days after the close of the first three
Fiscal Quarters of each Fiscal Year of the Company and its Subsidiaries
(commencing with the first Fiscal Quarter of 2004), consolidated and
consolidating unaudited balance sheets as at the close of each such
Fiscal Quarter and consolidated and consolidating profit and loss
statements and a statement of cash flows for the period from the
beginning of the applicable Fiscal Year to the end of such Fiscal
Quarter, all certified by its chief financial officer in a manner
consistent with certifications filed with the Securities and
57
Exchange Commission with respect to such statements and prepared in
accordance with GAAP (except for exclusion of footnotes and subject to
normal year-end audit adjustments);
(c) within 20 days after the close of each Fiscal Month
of the Company and its Subsidiaries, consolidated and consolidating
unaudited balance sheets as at the close of each such Fiscal Month and
consolidated and consolidating profit and loss and reconciliation of
surplus statements and a statement of cash flows for the period from
the beginning of the applicable Fiscal Year to the end of such Fiscal
Month, all prepared in accordance with GAAP (except for exclusion of
footnotes and subject to normal year-end audit adjustments);
(d) as soon as available, but in any event not more than
60 days prior to the end of each Fiscal Year of the Company, but not
less than 30 days prior to the end of such Fiscal Year, a copy of the
forecast (including a projected consolidated and consolidating balance
sheet, income statement and funds flow statement) of the Company for
each Fiscal Quarter of the following Fiscal Year (the "Projections") in
form reasonably satisfactory to the Agent;
(e) together with each of the financial statements
required under Sections 6.1(a) and (b), a compliance certificate in
substantially the form of Exhibit E (a "Compliance Certificate") signed
by the chief financial officer of the Company showing the calculations
necessary to determine compliance with this Agreement and stating that
no Default or Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof;
(f) as soon as available but in any event by Wednesday of
each week, an Aggregate Borrowing Base Certificate in connection
therewith for Sunday through Saturday of the previous week;
(g) as soon as available but in any event within 20 days
of the end of each Fiscal Month and at such other times as may be
requested by the Agent, as of the period then ended:
(i) a detailed aged trial balance of each
Borrower's Accounts (A) specifying the name, address, and
balance due for each Account Debtor and (B) reconciled to its
Borrowing Base Certificate delivered as of such date prepared
in a manner reasonably acceptable to the Agent;
(ii) a schedule detailing each Borrower's
Inventory, in form reasonably satisfactory to the Agent, (A)
by location (including any Inventory located with a third
party under any consignment, bailee arrangement, or warehouse
agreement), product type, and volume on hand, which Inventory
shall be valued at the lower of cost (determined on a
first-in, first-out basis) or market and adjusted for Reserves
as the Agent has previously indicated to the Borrowers are
deemed by the Agent to be appropriate, (B) including a report
of any variances or other results of Inventory counts
performed by the Borrowers since the last Inventory schedule
(including information regarding sales or other reductions,
additions, returns, credits issued by the Borrowers and
complaints and claims made against the Borrowers), and (C)
reconciled to the Aggregate Borrowing Base Certificate
delivered as of such date;
(iii) a worksheet of calculations prepared by the
Borrowers to determine Eligible Accounts and Eligible
Inventory, such worksheets detailing the Accounts and
Inventory excluded from Eligible Accounts and Eligible
Inventory and the reason for such exclusion;
(iv) a reconciliation of the Borrowers' Accounts
and Inventory between the amounts shown in the Borrowers'
books and financial statements and the reports delivered
pursuant to clauses (i) and (ii) above; and
58
(v) an Aggregate Borrowing Base Certificate
relating to such Fiscal Month along with all supporting
information, including, without limitation, a Borrowing Base
Certificate from each Loan Party;
(h) as soon as available but in any event within 20 days
of the end of each Fiscal Month and at such other times as may be
requested by the Agent, as of the Fiscal Month then ended, a schedule
and aging of the Borrowers' accounts payable;
(i) promptly upon the Agent's request:
(i) copies of invoices issued by the Borrowers
in connection with any Accounts, credit memos, shipping and
delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and
shipping and delivery documents in connection with any
Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all
intercompany accounts of the Loan Parties;
(j) as soon as possible and in any event within 270 days
after the close of the plan year of each Single Employer Plan, a
statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA;
(k) as soon as possible and in any event within 15 days
after any Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer
of such Borrower, describing said Reportable Event and the action which
such Borrower proposes to take with respect thereto;
(l) as soon as possible and in any event within 10 days
after receipt by any Loan Party, a copy of (i) any notice or claim to
the effect that any Loan Party is or may be liable to any Person as a
result of the release by any Loan Party, or any other Person of any
toxic or hazardous waste or substance into the environment, and (ii)
any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the any Loan
Party;
(m) concurrently with the furnishing thereof to the
shareholders of the Borrowers, copies of all financial statements,
reports and proxy statements so furnished;
(n) promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which any Loan Party files with the Securities and Exchange
Commission;
(o) as soon as possible and in any event within 20 days
after the end of each Fiscal Month, a detailed listing of all
intercompany loans made by the Borrowers during such month; and
(p) such other information (including non-financial
information) as the Agent or any Lender may from time to time
reasonably request.
In addition, not later than 20 days after the end of each Fiscal Month, each
Borrower shall submit a Borrowing Base Certificate to the Company with respect
to its Borrowing Base for the previous Fiscal Month, and the Company shall
retain such Borrowing Base Certificates and deliver same to the Agent upon the
Agent's request therefor.
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6.2. Use of Proceeds.
(a) The Borrowers will use the proceeds of the Credit
Extensions (i) to repay the outstanding indebtedness, liabilities and
obligations under the Prior Agreements, and (ii) for general corporate
purposes not otherwise prohibited by this Agreement.
(b) The Borrowers will not, nor will it permit any Loan
Party to, use any of the proceeds of the Credit Extensions to (i)
purchase or carry any Margin Stock in violation of Regulation U, (ii)
repay or refinance any Indebtedness of any Person incurred to buy or
carry any Margin Stock, or (iii) acquire any security in any
transaction that is subject to Section 13 or Section 14 of the
Securities Exchange Act of 1934 (and the regulations promulgated
thereunder).
6.3. Notices. Each Loan Party, through the Company, will give
prompt notice in writing to the Agent and the Lenders of:
(a) the occurrence of any Default or Unmatured Default
(which notice shall comply with Section 17.1);
(b) any other development, financial or otherwise, which
could reasonably be expected to have a Material Adverse Effect;
(c) the assertion by the holder of any Capital Stock of
any Loan Party or the holder of any Indebtedness of any Loan Party in
excess of $2,000,000 that any default exists with respect thereto or
that any Loan Party is not in compliance therewith;
(d) receipt of any written notice that any Loan Party is
subject to any non-routine investigation by any governmental entity
with respect to any potential or alleged violation of any applicable
Environmental Law or of imposition of any Lien against any Property of
any Loan Party for any liability with respect to damages arising from,
or costs resulting from, any violation of any Environmental Laws;
(e) receipt of any notice of litigation commenced or
threatened against any Loan Party that (i) seeks damages in excess of
$2,000,000, (ii) seeks injunctive relief, (iii) is asserted or
instituted against any Multiemployer Plan or ERISA Plan, its
fiduciaries or its assets, (iv) alleges criminal misconduct by any Loan
Party, (v) alleges the violation of any law regarding, or seeks
remedies in connection with, any Multiemployer Plan, ERISA Plan, or
Environmental Laws; or (vi) involves any product recall to the extent
such product recall could reasonably be expected to have a Material
Adverse Effect;
(f) any Lien (other than Permitted Liens) or claim made
or asserted against any material portion of the Collateral;
(g) unless otherwise permitted hereunder, its decision to
change, (i) such Loan Party's name or type of entity, (ii) such Loan
Party's articles or certificate of incorporation, partnership
agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, and
(iii) the location where any Collateral is held or maintained; provided
that, in no event shall the Agent receive notice of such change less
than thirty days prior thereto;
(h) commencement of any proceedings contesting any tax,
fee, assessment, or other governmental charge in excess of $1,000,000;
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(i) the opening of any new deposit account by any Loan
Party with any bank or other financial institution other than the
Agent;
(j) any loss, damage, or destruction to the Collateral in
the amount of $500,000 or more, whether or not covered by insurance;
(k) any and all payment or other material default notices
received under or with respect to any leased location or public
warehouse where Collateral with a value in excess of $1,000,000 is
located (which shall be delivered within two Business Days after
receipt thereof);
(l) all material amendments to real estate leases where
Collateral with a value in excess of $1,000,000 is located, together
with a copy of each such amendment;
(m) immediately after becoming aware of any pending or
threatened strike, work stoppage, unfair labor practice claim, or other
labor dispute affecting a Borrower or any of its Subsidiaries, in the
case of any of the foregoing, which could reasonably be expected to
have a Material Adverse Effect;
(n) evidence of payment of monthly lease or rental
payments as to each leased or rented location where Collateral with a
value in excess of $1,000,000 is located and for which a landlord or
bailee waiver has not been obtained (which shall be delivered within 10
Business Days after payment thereof);
(o) the fact that such Loan Party has entered into a Rate
Management Transaction or an amendment to a Rate Management
Transaction, other than, in each case, any Rate Management Transaction
with the Agent, which notice may be made via email to the Agent, and,
if requested by the Agent, together with copies of all agreements
evidencing such Rate Management Transactions or amendments thereto;
(p) the fact that the Indebtedness of any Foreign
Subsidiary (other than a Loan Party) exceeds $5,000,000;
(q) the occurrence of any default under any of the other
Loan Documents; and
(r) any other matter as Agent may reasonably request.
6.4. Conduct of Business. Each Loan Party will:
(a) carry on and conduct its business in substantially
the same manner and in substantially the same or related fields of
enterprise as it is presently conducted;
(b) do all things necessary to remain duly incorporated
or organized, validly existing and (to the extent such concept applies
to such entity) in good standing as a domestic corporation, partnership
or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority
to conduct its business in each jurisdiction in which its business is
conducted;
(c) keep adequate books and records with respect to its
business activities in which proper entries, reflecting all financial
transactions, are made in accordance with GAAP and on a basis
consistent with the Financial Statements delivered to the Agent
pursuant to Section 4.1(p);
(d) at all times maintain, preserve and protect all of
its assets and properties used or useful in the conduct of its
business, and keep the same in good repair, working order and condition
61
in all material respects (taking into consideration ordinary wear and
tear) and from time to time make, or cause to be made, all necessary or
appropriate repairs, replacements and improvements thereto consistent
with industry practices; and
(e) transact business only in such corporate and trade
names as are set forth in Schedule 5.12 or in any notice delivered to
the Agent in accordance with Section 6.3(g).
6.5. Taxes. Each Loan Party will timely file complete and correct
U.S. federal and applicable foreign, state and local tax returns required by law
and pay when due all taxes, assessments and governmental charges and levies upon
it or its income, profits, Property or Collateral, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside in accordance with GAAP on the Company's
consolidated financial statements. At any time that any Loan Party is organized
as a limited liability company, each such limited liability company will qualify
for partnership tax treatment under U.S. federal tax law.
6.6. Payment of Indebtedness and Other Liabilities. Each Loan Party
will pay or discharge when due all Material Indebtedness permitted by Section
6.16 owed by such Loan Party and all other liabilities and obligations due to
materialmen, mechanics, carriers, warehousemen, and landlords, except that the
Loan Parties may in good faith contest, by appropriate proceedings diligently
pursued, any such obligations; provided that, (a) adequate reserves have been
set aside for such liabilities in accordance with GAAP, (b) such liabilities
would not result in aggregate liabilities in excess of $1,000,000, (c) no Lien
shall be imposed to secure payment of such liabilities that is superior to the
Agent's Liens securing the Secured Obligations, (d) none of the Collateral
becomes subject to forfeiture or loss as a result of the contest and (e) such
Loan Party shall promptly pay or discharge such contested liabilities, if any,
and shall deliver to the Agent evidence reasonably acceptable to the Agent of
such compliance, payment or discharge, if such contest is terminated or
discontinued adversely to such Loan Party or the conditions set forth in this
proviso are no longer met.
6.7. Insurance.
(a) Each Loan Party shall at all times maintain, with
financially sound and reputable carriers having a Financial Strength
rating of at least A- by A.M. Best Company, insurance against: (i) loss
or damage by fire and loss in transit; (ii) theft, burglary, pilferage,
larceny, embezzlement, and other criminal activities; (iii) business
interruption; and (iv) such other hazards, as is customary in the
business of such Loan Party (it being agreed that the Loan Parties need
not obtain or maintain general liability insurance, including,
specifically with respect to environmental matters or chronic beryllium
disease, on terms that the Loan Parties, in their reasonable business
judgment, determine unnecessary or prohibitively expensive). All such
insurance shall be in amounts, cover such assets and be under policies
generally consistent with the insurance maintained by the Loan Parties
on the date hereof. In the event any Collateral is located in any area
that has been designated by the Federal Emergency Management Agency as
a "Special Flood Hazard Area," the applicable Loan Party shall purchase
and maintain flood insurance on such Collateral (including any personal
Property which is located on any real Property leased by such Loan
Party within a "Special Flood Hazard Area"). The amount of all
insurance required by this Section shall at a minimum comply with
applicable law, including the Flood Disaster Protection Act of 1973, as
amended. All premiums on such insurance shall be paid when due by the
applicable Loan Party, and copies of the policies delivered to the
Agent. If any Loan Party fails to obtain any insurance as required by
this Section, the Agent at the direction of the Required Lenders may
obtain such insurance at the Borrowers' expense. By doing so, the Agent
shall not be deemed to have waived any Default or Unmatured Default
arising from any Loan Party's failure to maintain such insurance or pay
any premiums therefore. No Loan Party will use or permit any Property
to be used in material violation of applicable law or in any manner
which might render inapplicable any insurance coverage.
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(b) All insurance policies required under Section 6.7(a)
shall name the Agent (for the benefit of the Agent and the Lenders) as
an additional insured or as loss payee, as applicable, and shall
provide that, or contain loss payable clauses or mortgagee clauses, in
form and substance satisfactory to the Agent, which provide that:
(i) all proceeds thereunder with respect to any
Collateral shall be payable to the Agent;
(ii) no such insurance shall be affected by any
act or neglect of the insured or owner of the Property
described in such policy; and
(iii) such policy and loss payable clauses may be
canceled, amended, or terminated only upon at least thirty
days prior written notice given to the Agent.
(c) Notwithstanding the foregoing, any insurance or
condemnation proceeds received by the Loan Parties shall be immediately
forwarded to the Agent and the Agent may, at its option, apply any such
proceeds to the reduction of the Obligations in accordance with Section
2.15(d), provided that (i) in the case of insurance proceeds pertaining
to any Domestic Loan Party, such insurance proceeds shall be applied to
all of the Obligations, and (ii) in the case of insurance proceeds
pertaining to any Singapore Loan Party, such insurance proceeds shall
be applied to the Singapore Obligations. The Agent may permit or
require any Loan Party to use such money, or any part thereof, to
replace, repair, restore or rebuild the Collateral in a diligent and
expeditious manner with materials and workmanship of substantially the
same quality as existed before the loss, damage or destruction.
Notwithstanding the foregoing, if the casualty giving rise to such
insurance proceeds could not reasonably be expected to have a Material
Adverse Effect and such insurance proceeds do not exceed $3,000,000 for
any single event, in the aggregate, upon the applicable Loan Party's
request, the Agent shall permit such Loan Party to replace, restore,
repair or rebuild the property; provided that, if such Loan Party has
not completed or entered into binding agreements to complete such
replacement, restoration, repair or rebuilding within 180 days of such
casualty, the Agent may apply such insurance proceeds to the
Obligations in accordance with Section 2.15. All insurance proceeds
that are to be made available to the Borrowers to replace, repair,
restore or rebuild the Collateral shall be applied by the Agent to
reduce the outstanding principal balance of the Revolving Loans (which
application shall not result in a permanent reduction of the Revolving
Commitment) and upon such application, the Agent shall establish a
Reserve against the Aggregate Borrowing Base in an amount equal to the
amount of such proceeds so applied. All insurance proceeds made
available to any Loan Party that is not a Borrower to replace, repair,
restore or rebuild Collateral shall be deposited in a cash collateral
account. In either case, thereafter, such funds shall be made available
to the applicable Loan Party to provide funds to replace, repair,
restore or rebuild the Collateral as follows:
(i) such Borrower shall request a Revolving Loan
or the applicable Loan Party shall request a release from the
cash collateral account be made in the amount needed;
(ii) so long as the conditions set forth in
Section 4.2 have been met, the Lenders shall make such
Revolving Loan or Agent shall release funds from the cash
collateral account; and
(iii) in the case of insurance proceeds applied
against a Revolving Loan, the Reserve established with respect
to such insurance proceeds shall be reduced by the amount of
such Revolving Loan.
6.8. Compliance with Laws. Except where the failure to comply would
not have a Material Adverse Effect, each Loan Party will comply with all laws,
rules, regulations, orders, writs, judgments,
63
injunctions, decrees or awards to which it may be subject including, without
limitation, all Environmental Laws.
6.9. Inspection. Each Loan Party will permit the Agent, on behalf
of the Agent and the Lenders, by its respective employees, representatives and
agents, from time to time upon two Business Days' prior notice as frequently as
the Agent reasonably determines to be appropriate, to (a) inspect any of the
Property, the Collateral, and the books and financial records of such Loan
Party, (b) examine, audit and make extracts or copies of the books of accounts
and other financial records of such Loan Party, (c) have access to its
properties, facilities, the Collateral and its advisors, officers, directors and
employees to discuss the affairs, finances and accounts of such Loan Party and
(d) review, evaluate and make test verifications and counts of the Accounts,
Inventory and other Collateral of such Loan Party. If a Default has occurred and
is continuing, each Loan Party shall provide such access to the Agent and to
each Lender at all times and without advance notice. During any inspection, the
Agent and each Lender will, and will cause their respective employees,
representatives and agents to, comply with all health, safety and security
requirements in affect at any such Property or location where Collateral or
books and records are located. Furthermore, so long as any Default has occurred
and is continuing, each Loan Party shall provide the Agent and each Lender with
access to its suppliers. Each Loan Party shall promptly make available to the
Agent and its counsel copies of all books and records that the Agent may
reasonably request. The Loan Parties acknowledge that from time to time the
Agent may prepare and may distribute to the Lenders certain audit reports
pertaining to the Loan Parties' assets for internal use by the Agent and the
Lenders from information furnished to it by or on behalf of the Loan Parties,
after the Agent has exercised its rights of inspection pursuant to this
Agreement.
6.10. Appraisals; Field Exams. Whenever a Default exists, and at
such other times commencing after April 1, 2004 (not more frequently than twice
per Fiscal Year) as the Agent requests, the Loan Parties shall, at their sole
expense, provide the Agent with appraisals or updates thereof of their
Inventory, Equipment and real Property from an appraiser, and prepared on a
basis, reasonably satisfactory to the Agent, such appraisals and updates to
include, without limitation, information required by applicable law and
regulations and by the internal policies of the Lenders. Whenever a Default
exists, and at such other times (not more frequently than every 120 days as the
Agent requests), the Agent shall have the right to conduct a field exam of each
Loan Party at the sole cost and expense of the Loan Parties.
6.11. Communications with Accountants. Each Loan Party executing
this Agreement authorizes (a) the Agent and (b) so long as a Default has
occurred and is continuing, each Lender, to communicate directly with its
independent certified public accountants and authorizes and shall instruct those
accountants and advisors to communicate to the Agent and each Lender information
relating to any Loan Party with respect to the business, results of operations
and financial condition of any Loan Party.
6.12. Collateral Access Agreements and Real Estate Purchases. Each
Loan Party shall use commercially reasonable efforts to obtain a Collateral
Access Agreement, from the lessor of each leased property, mortgagee of owned
property or bailee or consignee with respect to any warehouse, processor or
converter facility or other location where Collateral is stored or located,
which agreement or letter shall contain a waiver or subordination of all Liens
or claims that the landlord, mortgagee or bailee or consignee may assert against
the Collateral at that location, and shall otherwise be reasonably satisfactory
in form and substance to the Agent. After the Closing Date, no real Property or
warehouse space shall be leased by any Loan Party and no Inventory shall be
shipped to a processor or converter under arrangements established after the
Closing Date without the prior written consent of the Agent (which consent, in
the Agent's discretion, may be conditioned upon the exclusion from the Borrowing
Base of a Reserve for rent at that location in accordance with subpart (h) of
the definition of Eligible Inventory at that location or, unless and until a
satisfactory Collateral Access Agreement shall first have been obtained with
respect to such location). Each Loan Party shall timely and fully pay and
perform in all material respects its obligations under all leases and other
agreements with respect to each leased location or third party warehouse where
any Collateral is or may be located. To the extent permitted hereunder, if any
Loan Party proposes to acquire a fee ownership interest in real Property after
the Closing Date, it shall first provide to the Agent a mortgage or
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deed of trust granting the Agent a first priority Lien on such real Property,
together with environmental audits, mortgage title insurance commitment, real
property survey, local counsel opinion(s), and, if required by the Agent,
supplemental casualty insurance and flood insurance, and such other documents,
instruments or agreements reasonably requested by the Agent, in each case, in
form and substance reasonably satisfactory to the Agent.
6.13. Deposit Account Control Agreements. The Loan Parties will
provide to the Agent, upon the Agent's request, a Deposit Account Control
Agreement duly executed on behalf of each financial institution holding a
deposit account of a Loan Party as set forth in the Security Agreement; provided
that, the Agent may, in its Permitted Discretion, establish a Reserve with
respect to any deposit account for which the Agent has not received such Deposit
Account Control Agreement, or require the Loan Party to open and maintain a new
deposit account with a financial institution subject to a Deposit Account
Control Agreement.
6.14 Additional Collateral; Further Assurances.
(a) Subject to applicable law, each Loan Party shall,
unless the Required Lenders otherwise consent, (i) cause each operating
Subsidiary of the Company (excluding any Foreign Subsidiary) to become
or remain a Loan Party and a Guarantor and (ii) cause each operating
Subsidiary of the Company (excluding any Foreign Subsidiary) formed or
acquired after the Closing Date in accordance with the terms of this
Agreement to (1) become a party to this Agreement by executing a
Joinder Agreement in the form set forth as Exhibit F hereto (the
"Joinder Agreement"), and (2) guarantee payment and performance of the
Guaranteed Obligations pursuant to the Guaranty and enter into a
Security Agreement granting to the Agent, for the benefit of the
Domestic Lenders, a first priority security interest in all of its
personal and real Property. Upon execution and delivery of such Loan
Documents and other instruments, certificates, and agreements, each
such Person shall automatically become a Guarantor hereunder and
thereupon shall have all of the rights, benefits, duties, and
obligations in such capacity under the Loan Documents.
(b) Upon the request of the Agent, (i) each Domestic Loan
Party shall grant Liens to the Agent in respect of the Obligations and
each Singapore Loan party shall grant Liens to the Singapore
Correspondent Lender in respect of the Singapore Obligations, in each
case for the benefit of the Applicable Agent and Lenders, pursuant to
such documents as the Agent may reasonably deem necessary and deliver
such property, documents, and instruments as the Agent may request to
perfect the Liens of the Agent in any Property of such Loan Party which
constitutes Collateral, including any parcel of real Property located
in the U.S. owned by any Loan Party, and (ii) in connection with the
foregoing requirements, or either of them, deliver to the Agent all
items of the type required by Section 4.1 (as applicable).
(c) Each Loan Party will cause (i) 100% of the issued and
outstanding Capital Stock of each of its Domestic Subsidiaries and (ii)
65% (or such greater percentage that, due to a change in an applicable
law after the date hereof, (A) could not reasonably be expected to
cause the undistributed earnings of such Foreign Subsidiary as
determined for U.S. federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary's U.S. parent and (B) could
not reasonably be expected to cause any material adverse tax
consequences) of the issued and outstanding Capital Stock entitled to
vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100%
of the issued and outstanding Capital Stock not entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each
Foreign Subsidiary that is also a Loan Party to be subject at all times
to a first priority, perfected Lien in favor of the Agent pursuant to
the terms and conditions of the Loan Documents or other security
documents as the Agent shall reasonably request.
(d) Without limiting the foregoing, each Loan Party
shall, and shall cause each of the Company's Subsidiaries which is
required to become a Loan Party pursuant to the terms of this Agreement
to, execute and deliver, or cause to be executed and delivered, to the
Agent such
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documents and agreements, and shall take or cause to be taken such
actions as the Agent may, from time to time, reasonably request to
carry out the terms and conditions of this Agreement and the other Loan
Documents.
6.15. Dividends.
(a) No Loan Party other than the Company will declare or
pay any dividends or make any distributions on its Capital Stock (other
than dividends or distributions payable in its own common stock) or
redeem, repurchase or otherwise acquire or retire any of its Capital
Stock at any time outstanding, except that, if no Default has occurred
and is continuing or no Default or Unmatured Default would result after
giving effect to such payment, any Subsidiary may declare and pay
dividends or make distributions to the Borrowers or to a Wholly-Owned
Subsidiary of the Borrowers.
(b) No Loan Party shall directly or indirectly enter into
or become bound by any agreement, instrument, indenture or other
obligation (other than this Agreement and the other Loan Documents and
the Guggenheim Debt Documents) that could directly or indirectly
restrict, prohibit or require the consent of any Person with respect to
the payment of dividends or distributions or the making or repayment of
intercompany loans by a Subsidiary of the Borrowers to the Borrowers.
6.16. Indebtedness. The Borrowers will not, nor will they permit any
other Loan Party to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness existing on the date hereof and
described in Schedule 5.22;
(c) purchase money Indebtedness or Capitalized Lease
Obligations incurred in connection with the purchase of any Equipment;
provided that, the amount of such purchase money Indebtedness or
Capitalized Lease Obligations shall be limited to an amount not in
excess of the purchase price of such Equipment and the aggregate of all
such purchase money Indebtedness and Capitalized Lease Obligations
incurred in any Fiscal Year shall not exceed $2,500,000;
(d) Indebtedness which represents an extension,
refinancing, or renewal of any of the Indebtedness described in clauses
(b), (c) and (g) hereof; provided that, (i) the principal amount or
interest rate of such Indebtedness is not increased, (ii) any Liens
securing such Indebtedness are not extended to any additional Property
of any Loan Party, (iii) no Loan Party that is not originally obligated
with respect to repayment of such Indebtedness is required to become
obligated with respect thereto, (iv) such extension, refinancing or
renewal does not result in a shortening of the average weighted
maturity of the Indebtedness so extended, refinanced, renewed, (v) the
terms of any such extension, refinancing, or renewal are not less
favorable in any material respect to the obligor thereunder than the
original terms of such Indebtedness, and (iv) if the Indebtedness that
is refinanced, renewed, or extended was subordinated in right of
payment to the Obligations, then the terms and conditions of the
refinancing, renewal, or extension Indebtedness must include
subordination terms and conditions that are at least as favorable to
the Agent and the Lenders as those that were applicable to the
refinanced, renewed, or extended Indebtedness;
(e) Indebtedness owing by any Loan Party to any other
Loan Party with respect to intercompany loans, provided further, that:
(i) the applicable Loan Parties shall have
executed and delivered to the other Loan Parties, on the
Closing Date, a demand note (collectively, the "Intercompany
Notes") to evidence any such intercompany Indebtedness owing
at any time by any Loan Party to
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any other Loan Party, which Intercompany Notes shall be in
form and substance reasonably satisfactory to the Agent and
shall be pledged and delivered to the Agent pursuant to the
Security Agreement as additional collateral security for the
Secured Obligations;
(ii) the Loan Parties shall record all
intercompany transactions on its books and records in a manner
reasonably satisfactory to the Agent;
(iii) the obligations of the Loan Parties under
any such Intercompany Notes shall be subordinated to the
Obligations of the Loan Parties hereunder in a manner
reasonably satisfactory to Agent; provided that so long as no
Default has occurred and is continuing, the Borrowers may
repay the obligations under the Intercompany Notes;
(iv) at the time any such intercompany loan or
advance is made by the Loan Parties and after giving effect
thereto, such Loan Party shall be Solvent; and
(v) no Default or Unmatured Default would occur
and be continuing after giving effect to any such proposed
intercompany loan.
(f) Contingent Obligations (i) by endorsement of
instruments for deposit or collection in the ordinary course of
business, (ii) consisting of the Reimbursement Obligations, (iii)
consisting of the Guaranty and guarantees of Indebtedness incurred for
the benefit of any other Loan Party if the primary obligation is
expressly permitted elsewhere in this Section 6.16, and (iv) under the
Kazakhstan Contract;
(g) Indebtedness arising under Rate Management
Transactions having a Net Xxxx-to-Market Exposure not exceeding
$15,000,000, which amount shall include the Rate Management
Transactions set forth on Schedule 5.22;
(h) other unsecured Indebtedness in an amount not in
excess of $1,000,000;
(i) Indebtedness arising under any Permitted Precious
Metals Agreement;
(j) the Guggenheim Debt; and
(k) the Export-Import Loan.
6.17. Capital Structure. If all or any part of a Loan Party's
Capital Stock has been pledged to the Agent, that Loan Party shall not issue
additional Capital Stock.
6.18. Merger. No Loan Party will merge or consolidate with or into
any other Person, except that (a) any Subsidiary of a Borrower may merge into
such Borrower or a Wholly-Owned Subsidiary of such Borrower and (b) any Loan
Party may merge with any other Loan Party.
6.19. Sale of Assets. No Loan Party will lease, sell or otherwise
dispose of its Property (including any Capital Stock owned by it) to any other
Person (other than another Loan Party), except:
(a) sales of Inventory in the ordinary course of
business;
(b) the sale or other disposition of Equipment that is
obsolete or no longer useful in any way in such Loan Party's business;
(c) the sale or disposition of other assets having a book
value not exceeding $250,000 in the aggregate in any Fiscal Year; and
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(d) any sale or disposition permitted by this Agreement
or by the Agent and with respect to which the Domestic Borrowers elect
to apply the Net Cash Proceeds towards prepayment of the Obligations.
The Net Cash Proceeds of any sale or disposition permitted pursuant to this
Section (other than pursuant to Section 6.19(a)) shall be delivered to the Agent
if required by Section 2.15 and applied to the Obligations as set forth therein;
provided, however, that the Net Cash Proceeds of any sale or disposition of real
Property permitted pursuant to this Section shall be applied by the Agent to the
Term B Loan.
6.20. Investments and Acquisitions. No Loan Party will (a) make or
suffer to exist any Investments (including without limitation, loans and
advances to, and other Investments in, Subsidiaries), or commitments therefor,
(b) create any Subsidiary or (c) become or remain a partner in any partnership
or joint venture, or (d) make any Acquisition, except:
(a) Cash Equivalent Investments, subject to control
agreements in favor of the Agent for the benefit of the Lenders or
otherwise subject to a perfected security interest in favor of the
Agent for the benefit of the Lenders;
(b) Investments in Subsidiaries existing as of the
Closing Date;
(c) other Investments in existence on the Closing Date
and described in Schedule 6.20;
(d) Investments consisting of loans or advances made to
employees of such Loan Party on an arms-length basis in the ordinary
course of business consistent with past practices for travel and
entertainment expenses, and similar purposes up to a maximum of $10,000
to any employee and up to a maximum of $50,000 in the aggregate at any
one time outstanding;
(e) subject to Sections 4.2(a) and 4.4 of the Security
Agreement, Investments comprised of notes payable, or stock or other
securities issued by Account Debtors to such Loan Party pursuant to
negotiated agreements with respect to settlement of such Account
Debtor's Accounts in the ordinary course of business, consistent with
past practices;
(f) additional Investments in Subsidiaries which are Loan
Parties;
(g) other Investments not to exceed $2,500,000 each, and
$7,500,000 in the aggregate during the term of this Agreement;
(h) Acquisitions in which the cash portion of the
purchase price does not exceed $2,500,000 per Acquisition and
$7,500,000 in the aggregate for all Acquisitions during any Fiscal Year
(it being understood that there shall be no limit on Acquisitions using
common stock of the Company);
(i) Investments up to an aggregate amount of $5,000,000
made in connection with employee compensation arrangements, employee
option plans or deferred director compensation arrangements, all in a
manner consistent with the Loan Parties' historical practices;
(j) Investments under Permitted Precious Metal
Agreements;
(k) Investments in Xxxxxx Corp. (a non-Loan Party
Subsidiary of Brush Xxxxxxx Inc.) in connection with
(i) any environmental remediation, in an aggregate
amount not to exceed $2,000,000 during the term of
this Agreement, and (ii) retiree medical benefits
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for former employees of Xxxxxx Corp. in an aggregate
amount not to exceed $4,000,000 during the term of
this Agreement; and
(l) Other Investments in non-Loan Party Subsidiaries in
connection with administrative and similar items
(including, without limitation, franchise taxes) in
an amount to exceed $500,000 at any time.
6.21. Liens.
(a) No Loan Party will create, incur, or suffer to exist
any Lien in, of, or on the Property of such Loan Party, except the
following (collectively, "Permitted Liens"):
(i) Liens for taxes, fees, assessments, or other
governmental charges or levies on the Property of such Loan
Party if such Liens (a) shall not at the time be delinquent or
(b) subject to the provisions of Section 6.5, do not secure
obligations in excess of $1,000,000, are being contested in
good faith and by appropriate proceedings diligently pursued,
adequate reserves in accordance with GAAP have been provided
on the books of such Loan Party, and a stay of enforcement of
such Lien is in effect;
(ii) Liens imposed by law, such as carrier's,
warehousemen's, and mechanic's Liens and other similar Liens
arising in the ordinary course of business which secure
payment of obligations not more than ten days past due or
which are being contested in good faith by appropriate
proceedings diligently pursued and for which adequate reserves
shall have been provided on such Loan Party's books;
(iii) statutory Liens in favor of landlords of
real Property leased by such Loan Party; provided that, such
Loan Party is current with respect to payment of all rent and
other material amounts due to such landlord under any lease of
such real Property;
(iv) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement benefits,
or similar legislation or to secure the performance of bids,
tenders, or contracts (other than for the repayment of
Indebtedness) or to secure indemnity, performance, or other
similar bonds for the performance of bids, tenders, or
contracts (other than for the repayment of Indebtedness) or to
secure statutory obligations (other than liens arising under
ERISA or Environmental Laws) or surety or appeal bonds, or to
secure indemnity, performance, or other similar bonds;
(v) utility easements, building restrictions,
and such other encumbrances or charges against real Property
as are of a nature generally existing with respect to
properties of a similar character and which do not in any
material way affect the marketability of such real Property or
interfere in any material respect with the use thereof in the
business of such Loan Party;
(vi) the equivalent of the types of Liens
discussed in clauses (i) through (v) above, inclusive, in any
jurisdiction in which any Loan Party is engaged in business or
owns Property or assets;
(vii) Liens existing on the Closing Date and
described in Schedule 6.21 or existing in connection with
Indebtedness described on Schedule 5.22;
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(viii) Liens resulting from any extension,
refinancing, or renewal of the related Indebtedness as
permitted pursuant to Section 6.16(d); provided that, the
Liens evidenced thereby are not increased to cover any
additional Property not originally covered thereby;
(ix) Liens securing purchase money Indebtedness
of such Loan Party permitted pursuant to Section 6.16(c);
provided that, such Liens attach only to the Property which
was purchased with the proceeds of such purchase money
Indebtedness;
(x) Liens arising from judgments or orders under
circumstances that do not constitute a Default under clause
(j) of Article VII; and
(xi) Liens arising in connection with Permitted
Precious Metals Agreements;
(xii) Liens arising in connection with the
Guggenheim Debt Documents, so long as they are subordinated
pursuant to the terms of an Intercreditor Agreement; and
(xiii) Liens in favor of the Agent granted pursuant
to any Loan Document.
(b) Notwithstanding the foregoing, none of the Liens
permitted pursuant to this Section 6.21, other than (1) Liens of the
type described in clauses (i), (ii), (iv), (vi) through (viii), and (x)
through (xiii) above, may at any time attach to any Accounts of any
Loan Party and (2) Liens of the type described in clauses (i) through
(iv), and (vi) through (xiii) above, may at any time attach to any
Inventory of any Loan Party.
(c) Other than as provided in the Loan Documents or in
connection with the creation or incurrence of any Indebtedness under
Section 6.16(c), no Loan Party will enter into or become subject to any
negative pledge or other restriction on the right of such Loan Party to
grant Liens to the Agent and the Lenders on any of its Property;
provided that, any such negative pledge or other restriction entered
into in connection with the creation of Indebtedness under Section
6.16(c) shall be limited to the Property securing such purchase money
Indebtedness.
6.22. Change of Name or Location; Change of Fiscal Year. No Loan
Party shall (a) change its name as it appears in official filings in the state
of its incorporation or organization, (b) change its chief executive office,
principal place of business, mailing address, corporate offices or warehouses or
locations at which Collateral is held or stored, or the location of its records
concerning the Collateral as set forth in the Security Agreement, (c) change the
type of entity that it is, (d) change its organization identification number, if
any, issued by its state of incorporation or other organization, or (e) change
its state of incorporation or organization, in each case, without at least 30
days prior written notice to the Agent and the Agent shall have either (i)
determined that such event or occurrence will not adversely affect the validity,
perfection or priority of the Agent's security interest in the Collateral, or
(ii) after the Agent's written acknowledgment that any reasonable action
requested by the Agent in connection therewith, including to continue the
perfection of any Liens in favor of the Agent, on behalf of Lenders, in any
Collateral, has been completed or taken, and, provided that, with respect to any
Domestic Loan Party, any new location shall be in the continental U.S. No Loan
Party shall change its Fiscal Year.
6.23. Affiliate Transactions. Except as set forth on Schedule 5.23,
no Loan Party will enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment or
transfer (including, without limitation, any payment or transfer with respect to
any fees or expenses for management services) to, any Affiliate except in the
ordinary course of business and pursuant to the reasonable requirements of such
Loan Party's business and upon fair and reasonable terms no less favorable to
such Loan Party than such Loan Party would obtain in a comparable arms-length
transaction.
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6.24. Amendments to Agreements. Except as required in connection
with a transaction or circumstance described in Sections 6.18 or 6.22, no Loan
Party will, nor will any Loan Party permit its Subsidiary to, amend or terminate
its articles of incorporation, charter, certificate of formation, by-laws,
operating, management or partnership agreement or other organizational document
in any manner that could reasonably be expected to adversely affect the Lenders.
6.25. Prepayment of Indebtedness; Subordinated Indebtedness.
(a) No Loan Party shall, directly or indirectly,
voluntarily purchase, redeem, defease, acquire or prepay any principal
of, premium, if any, interest or other amount payable in respect of any
Indebtedness prior to its scheduled maturity, other than (i) the
Obligations; (ii) Indebtedness secured by a Permitted Lien if the asset
securing such Indebtedness has been sold or otherwise disposed of in
accordance with Section 6.19; (iii) Indebtedness permitted by Section
6.16(d) upon any refinancing thereof in accordance therewith; (iv)
Indebtedness permitted by Section 6.16(e), (v) Indebtedness permitted
by Section 6.16(i), and (vi) so long as no Default has occurred and is
continuing, up to (A) $5,000,000 from the Closing Date through the
second anniversary of the Closing Date, and (B) $5,000,000 in each
successive year thereafter toward the outstanding principal balance of
the Guggenheim Debt.
(b) No Loan Party shall make any amendment or
modification to the indenture, note or other agreement evidencing or
governing any Subordinated Indebtedness.
6.26 Letters of Credit. Except as set forth on Schedule 6.26, no
Loan Party will apply for or become liable upon or in respect of any Letter of
Credit other than Facility LCs.
6.27. Financial Contracts. No Loan Party shall enter into or remain
liable upon any Financial Contract, except for Rate Management Transactions
permitted by Section 6.16.
6.28. Capital Expenditures. No Loan Party shall expend, in the
aggregate for the Loan Parties, in excess of (a) $9,000,000 for Fiscal Year
2003; (b) $15,000,000 for Fiscal Year 2004; (c) $20,000,000 for Fiscal Year
2005; and (d) $25,000,000 for Fiscal Year 2006 for Capital Expenditures for the
Company and its Subsidiaries; provided that, to the extent that the Loan Parties
do not expend the amount permitted by this Section 6.28 in any Fiscal Year, such
unexpended amount, up to a maximum of 50% of the permitted amount for such
Fiscal Year, may be carried forward to the immediately succeeding Fiscal Year.
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6.29. Financial Covenants.
(a) Leverage Ratio. The Company will not permit the
Leverage Ratio, determined as of the end of each of its Fiscal Quarters
for the then most-recently ended four Fiscal Quarters, to be greater
than:
MEASUREMENT PERIOD LEVERAGE RATIO
------------------ --------------
Closing Date through March 31, 2004 6.00 to 1.00
April 1, 2004 through June 30, 2004 5.75 to 1.00
July 1, 2004 through September 30, 2004 5.50 to 1.00
October 1, 2004 through June 30, 2005 5.25 to 1.00
July 1, 2005 through September 30, 2005 5.00 to 1.00
October 1, 2005 through June 30, 2006 4.75 to 1.00
July 1, 2006 through September 30, 2006 4.50 to 1.00
October 1, 2006 and at all times thereafter 4.25 to 1.00
(b) Fixed Charge Coverage Ratio. The Company will not
permit the Fixed Charge Coverage Ratio, determined as of the end of
each of its Fiscal Quarters for the then most-recently ended four
Fiscal Quarters, to be less than (a) 1.25 to 1.00 on the Closing Date
through September 30, 2005 and (b) 1.50 to 1.00 at all times
thereafter.
6.30. Depository Banks. Each Loan Party shall maintain the Agent and
the Singapore Correspondent Lender, as the case may be, as such Loan Party's
principal depository bank, including for the maintenance of operating,
administrative, cash management, collection activity, and other deposit accounts
for the conduct of its business.
6.31. Off-Balance Sheet Liabilities; Sale and Leaseback
Transactions. Except for those liabilities set forth on Schedule 6.31 and for
Permitted Precious Metals Agreements, the Loan Parties shall not have any
Off-Balance Sheet Liabilities or engage in any Sale and Leaseback Transactions.
6.32. Sales of Accounts. No Loan Party will sell or otherwise
dispose of any notes receivable or accounts receivable, with or without
recourse.
6.33 Subordination of Intercompany Notes.
(a) All Indebtedness evidenced by an Intercompany Note,
together with all accrued interest thereon, and any other indebtedness
for borrowed money now owing or which hereafter may become owing by or
from a Loan Party to any other Loan Party, howsoever such indebtedness
may be hereafter created, extended, renewed or evidenced, together with
all accrued interest thereon and any and all other obligations and
liabilities of any kind owing by or from a Loan Party to any other Loan
Party shall at all times and in all respects be subordinate and junior
in right of payment to any and all obligations, liabilities and
indebtedness of any kind of the Loan Parties to the Lenders, and
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their respective successors and assigns, including, without limitation,
the Obligations, Guaranteed Obligations and any extensions, renewals,
modifications, and amendments thereof and all accrued interest thereon
and any Fees owing by the Loan Parties to the Lenders; provided,
however, that the Borrowers may make payments in respect of
Intercompany Notes in accordance with the provisions of Section
6.16(e).
(b) Unless and until (i) all of the Guaranteed
Obligations shall have been fully and finally paid and satisfied and
(ii) all financing arrangements, including, but not limited to this
Agreement, between the Company, the other Loan Parties and the Lenders
have been terminated, no Loan Party shall: (A) enforce or exercise any
right of demand or setoff or commence any legal or other action against
any other Loan Party to collect upon any Intercompany Note; (B) take or
accept any collateral or security with respect to the obligations
evidenced by any Intercompany Note without the prior written consent of
the Agent; (C) commence foreclosure or any other similar type of
proceedings or exercise any similar remedies in respect of any
collateral for the obligations evidenced by any Intercompany Note; (D)
enforce any judgment that it might obtain with respect to the
obligations evidenced by the Intercompany Notes without obtaining the
prior written consent of the Agent; or (E) commence or join with any
other creditor or creditors of the Loan Parties in commencing any
bankruptcy, reorganization or insolvency proceedings against such Loan
Party. All rights, liens and security interests of each Loan Party in
any assets of any other Loan Party and/or any other person securing the
obligations evidenced by any Intercompany Note, whether now or
hereafter arising and howsoever existing, shall be and hereby are
subordinated to the rights and interests of the Agent under this
Agreement and in those assets. The Loan Parties shall have no right to
possession of any such assets or to foreclose or execute upon any such
assets, whether by judicial action or otherwise.
(c) The Loan Parties represent and warrant that all
Intercompany Notes are and will remain unsecured, and (ii) shall not be
subordinated to any Indebtedness other than the Obligations set forth
in Section 6.16.
6.34. Accounting Methods. No Loan Party shall modify or change its
method of accounting (other than as may be required to conform to GAAP) or enter
into, modify, or terminate any agreement currently existing, or at any time
hereafter enter into with any third party accounting firm or service bureau for
the preparation or storage of the Loan Parties' accounting records without such
accounting firm or service bureau agreeing to provide to the Agent and the
Lenders information relating to (a) the Loan Parties' financial condition and
(b) the assets with on which the Lenders have Liens.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a "Default" hereunder:
(a) nonpayment, (i) when due (whether upon demand or
otherwise) of any principal owing under any of the Loan Documents, or
(ii) within 2 Business Days of the due date (whether upon demand or
otherwise) of any interest, fee, Reimbursement Obligation or any other
payment obligation owing under any of the Loan Documents;
(b) any representation or warranty made or deemed made by
or on behalf of any Loan Party to any Lender or the Agent under or in
connection with this Agreement, any other Loan Document (other than any
Export-Import Loan Document), any Credit Extension, or any certificate
or information delivered in connection with any of the foregoing shall
be materially false on the date as of which made;
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(c) the breach by any Loan Party of any of the terms or
provisions of Sections 6.2, 6.15 through 6.22 or 6.24 through 6.31;
(d) the breach by any Loan Party (other than a breach
which constitutes a Default under another Section of this Article VII)
of any of the terms or provisions of (i) Sections 6.1, 6.3 through 6.7,
6.9 through 6.14, or 6.23 of this Agreement which is not remedied
within 5 days after the earlier of such breach or written notice from
the Agent or any Lender or (ii) any other Section of this Agreement
which is not remedied within 30 days after receipt by the Company of
written notice from the Agent or any Lender;
(e) (i) failure of any Loan Party to pay when due any
Material Indebtedness; (ii) a default, breach or other event occurs
under any term, provision or condition contained in any Material
Indebtedness Agreement of any Loan Party, the effect of which default,
event or condition is to cause, or to permit the holder(s) of such
Material Indebtedness or the lender(s) under any Material Indebtedness
Agreement (other than any Export-Import Loan Document) to cause, such
Material Indebtedness to become due prior to its stated maturity; (iii)
any Material Indebtedness of any Loan Party shall be declared to be due
and payable or required to be prepaid or repurchased (other than by a
regularly scheduled payment) prior to the stated maturity thereof; or
(iv) any Loan Party shall not pay, or admit in writing its inability to
pay, its debts generally as they become due;
(f) any Loan Party shall (i) have an order for relief
entered with respect to it under the Bankruptcy Code as now or
hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of Property, (iv)
institute any proceeding seeking an order for relief under the
Bankruptcy Code as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (v) take any corporate, partnership or limited liability
company action to authorize or effect any of the foregoing actions set
forth in this subsection (f) or (vi) fail to contest in good faith any
appointment or proceeding described in subsection (g) below;
(g) a receiver, trustee, examiner, liquidator or similar
official shall be appointed for any Loan Party or any Substantial
Portion of its Property, or a proceeding described in subsection
(f)(iv) of Article VII shall be instituted against any Loan Party and
such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of sixty consecutive days;
(h) any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or control of,
all or any portion of the Property of any Loan Party which, when taken
together with all other Property of any Loan Party so condemned,
seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action
occurs, constitutes a Substantial Portion;
(i) any loss, theft, damage or destruction of any item or
items of Collateral or other property of any Loan Party occurs which
could reasonably be expected to cause a Material Adverse Effect and is
not adequately covered by insurance;
(j) any Loan Party shall fail within 30 days when due to
pay, bond or otherwise discharge one or more (i) judgments or orders
for the payment of money in excess of $2,000,000 (or the equivalent
thereof in currencies other than U.S. Dollars) in the aggregate, or
(ii) nonmonetary
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judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which
judgments or orders, in any such case, are not stayed on appeal or
otherwise being appropriately contested in good faith by proper
proceedings diligently pursued;
(k) any Change in Control shall occur;
(l) (i) the Unfunded Liabilities of all Single Employer
Plans shall exceed in the aggregate $30,000,000, or (ii) any Reportable
Event shall occur;
(m) a Loan Party or any other member of a Controlled
Group has incurred or shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred withdrawal liability to such
Multiemployer Plan;
(n) the occurrence of any "Default" or "Event of Default"
as defined in any Loan Document (other than this Agreement or any
Export-Import Loan Document) or, for any Loan Document (other than any
Export-Import Loan Document) in which "Default" or "Event of Default"
is not defined, the breach of any of the terms or provisions of such
Loan Document (other than any Export-Import Loan Document) , which
default or breach continues beyond any period of grace therein
provided;
(o) the Guaranty shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of the Guaranty, or any Guarantor shall
fail to comply with any of the material terms or provisions of the
Guaranty to which it is a party, or any Guarantor shall deny that it
has any further liability under the Guaranty to which it is a party, or
shall give notice to such effect;
(p) any Collateral Document shall for any reason fail to
create a valid and perfected first priority security interest in any
material portion of the Collateral purported to be covered thereby,
except as permitted by the terms of any Loan Document, or any
Collateral Document shall fail to remain in full force or effect or any
action shall be taken by a Loan Party to discontinue or to assert the
invalidity or unenforceability of any Collateral Document, or any Loan
Party shall fail to comply with any material term or provision of any
Collateral Document;
(q) any material provision of any Loan Document for any
reason ceases to be valid, binding and enforceable in accordance with
its terms (or any Loan Party shall challenge the enforceability of any
Loan Document or shall assert in writing, or engage in any action or
inaction based on any such assertion, that any provision of any of the
Loan Documents has ceased to be or otherwise is not valid, binding and
enforceable in accordance with its terms);
(r) nonpayment by a Borrower or any of its Subsidiaries
of any Rate Management Obligation when due or the breach by a Borrower
or any of its Subsidiaries of any term, provision or condition
contained in any Rate Management Transaction or any transaction of the
type described in the definition of "Rate Management Transactions,"
whether or not any Lender or Affiliate of a Lender is a party thereto;
(s) any Loan Party is criminally indicted or convicted
under any law that may reasonably be expected to lead to a forfeiture
of any Property of such Loan Party having a fair market value in excess
of $1,000,000; or
(t) with respect to the Export-Import Loan Documents, (i)
any representation or warranty made or deemed made by or on behalf of
any Loan Party under or in connection with the Export-Import Loan
Documents or any certificate or information delivered in connection
with any of the Export-Import Loan Documents shall be materially false
on the date as of which made, or (ii) a
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default, breach or other event occurs under any term, provision or
condition contained in such documents; in each case the effect of which
is to cause the lender under such documents to cause the Export-Import
Loans to become due prior to the stated maturity.
ARTICLE VIII
REMEDIES; WAIVERS AND AMENDMENTS
8.1. Remedies.
(a) If any Default occurs, the Agent may in its
discretion (and at the written request of the Required Lenders, shall)
(i) reduce the Aggregate Commitment, the Revolving Commitment or the
Singapore Commitment, (ii) terminate or suspend the obligations of the
Lenders to make Loans hereunder and the obligation and power of the LC
Issuer to issue Facility LCs, (iii) declare all or any portion of the
Obligations to be due and payable, whereupon such Obligations shall
become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which the Borrowers hereby
expressly waive, (iv) upon notice to the Borrowers and in addition to
the continuing right to demand payment of all amounts payable under
this Agreement, the Agent may either (A) make demand on the Borrowers
to pay, and the Borrowers will, forthwith upon such demand and without
any further notice or act, pay to the Agent an amount, in immediately
available funds (which funds shall be held in the Facility LC
Collateral Account), equal to 105% of the Collateral Shortfall Amount
or (B) deliver a Supporting Letter of Credit as required by Section
2.1.2(l), whichever the Agent may specify in its sole discretion, (v)
increase the rate of interest applicable to the Loans and the LC Fees
as set forth in this Agreement and (vi) exercise any rights and
remedies provided to the Agent under the Loan Documents or at law or
equity, including all remedies provided under the UCC.
(b) If any Default described in subsections (f) or (g) of
Article VII occurs with respect to any Loan Party, the obligations of
the Lenders to make Loans hereunder and the obligation and power of the
LC Issuer to issue Facility LCs shall automatically terminate and all
Obligations shall immediately become due and payable without any
election or action on the part of the Agent, the LC Issuer or any
Lender and the Loan Parties will be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay to the
Agent an amount equal to 105% of the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Collateral Account.
(c) If, within thirty days after acceleration of the
maturity of the Obligations or termination of the obligations of the
Lenders to make Loans and the obligation and power of the LC Issuer to
issue Facility LCs hereunder as a result of any Default (other than any
Default as described in subsections (f) or (g) of Article VII with
respect to the Borrowers) and before any judgment or decree for the
payment of the Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the Agent
shall, by notice to the Borrowers, rescind and annul such acceleration
and/or termination.
(d) If at any time while any Default is continuing, the
Agent determines that the Collateral Shortfall Amount at such time is
greater than zero, the Agent may make demand on the Domestic Borrowers
to pay, and the Domestic Borrowers will, forthwith upon such demand and
without any further notice or act, pay to the Agent an amount equal to
105% of the Collateral Shortfall Amount, which funds shall be deposited
in the Facility LC Collateral Account. The Domestic Borrowers hereby
pledge, assign, and grant to the Agent, on behalf of and for the
benefit of the Agent, the Lenders, and the LC Issuer, a security
interest in all of the Domestic Borrowers' right, title, and interest
in and to all funds which may from time to time be on deposit in the
Facility
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LC Collateral Account to secure the prompt and complete payment and
performance of the Obligations.
(e) The Agent may at any time or from time to time after
funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Obligations and any other amounts as shall
from time to time have become due and payable by the Borrowers to the
Lenders or the LC Issuer under the Loan Documents.
(f) At any time while any Default is continuing, neither
the Borrowers nor any Person claiming on behalf of or through the
Borrowers shall have any right to withdraw any of the funds held in the
Facility LC Collateral Account. After all of the Secured Obligations
have been indefeasibly paid in full and the Aggregate Commitment has
been terminated, any funds remaining in the Facility LC Collateral
Account shall be returned by the Agent to the Borrowers or paid to
whomever may be legally entitled thereto at such time.
8.2. Waivers by Loan Parties. Except as otherwise provided for in
this Agreement or by applicable law, each Loan Party waives: (a) presentment,
demand and protest and notice of presentment, dishonor, notice of intent to
accelerate, notice of acceleration, protest, default, nonpayment, maturity,
release, compromise, settlement, extension or renewal of any or all commercial
paper, accounts, contract rights, documents, instruments, chattel paper and
guaranties at any time held by the Agent on which any Loan Party may in any way
be liable, and hereby ratifies and confirms whatever the Agent may do in this
regard, (b) all rights to notice and a hearing prior to the Agent's taking
possession or control of, or to the Agent's replevy, attachment or levy upon,
the Collateral or any bond or security that might be required by any court prior
to allowing the Agent to exercise any of its remedies, and (c) the benefit of
all valuation, appraisal, marshaling and exemption laws.
8.3. Amendments.
(a) Subject to the provisions of this Section 8.3, no
amendment, waiver or modification of any provision of this Agreement or
any other Loan Document, and no consent with respect to any departure
by any Loan Party therefrom, shall be effective unless the same shall
be in writing and signed by the Required Lenders (or the Agent with the
consent in writing of the Required Lenders) and the Loan Parties and
then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(b) Notwithstanding subsection (a) above, no such
amendment, waiver or other modification with respect to this Agreement
shall, without the consent of all of the Lenders:
(i) extend the final maturity of any Loan to a
date after the Facility Termination Date;
(ii) postpone any regularly scheduled payment of
principal of any Loan or reduce or forgive all or any portion
of the principal amount of any Loan or any Reimbursement
Obligation;
(iii) reduce the rate or extend the time of
payment of interest or fees payable to the Lenders pursuant to
any Loan Document;
(iv) reduce the percentage or number of Lenders
specified in the definition of Required Lenders;
(v) extend the Facility Termination Date;
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(vi) increase the amount of the Aggregate
Commitment hereunder;
(vii) increase the advance rates set forth in the
definition of Domestic Borrowing Base or Singapore Borrowing
Base above the initial levels;
(viii) permit any Loan Party to assign its rights
under this Agreement;
(ix) amend this Section 8.3;
(x) release any guarantor of any Credit
Extension, except as otherwise permitted herein or in the
other Loan Documents; or
(xi) except as provided in Section 10.15 or any
Collateral Document, release all or substantially all of the
Collateral.
(c) No amendment of any provision of this Agreement
relating to the Agent or to the Non-Ratable Loans, the Overadvances or
the Protective Advances shall be effective without the written consent
of the Agent. No amendment of any provision relating to the LC Issuer
shall be effective without the written consent of the LC Issuer. The
Agent may (i) amend the Commitment Schedule to reflect assignments
entered into pursuant to Section 12.3, and (ii) waive payment of the
fee required under Section 12.3(c).
8.4. Preservation of Rights. No delay or omission of the Lenders,
the LC Issuer or the Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the
existence of a Default or the inability of the Borrowers to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Lenders required pursuant to Section 8.3, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent, the LC Issuer and the Lenders until the Obligations have been paid
in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of the Loan Parties contained in this Agreement and the other Loan
Documents shall survive the execution and delivery of the Loan Documents and the
making of the Credit Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrowers in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Loan Parties, the Agent, the LC Issuer and
the Lenders and supersede all prior agreements and
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understandings among the Loan Parties, the Agent and the Lenders relating to the
subject matter thereof other than those contained in the Fee Letter.
9.5. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other lender (except to the extent
to which the Agent is authorized to act as administrative agent for the Lenders
hereunder). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. This Agreement shall not be construed so as to confer any right or
benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns, provided however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the provisions of
Sections 9.6, 9.10 and 10.11 to the extent specifically set forth therein and
shall have the right to enforce such provisions on its own behalf and in its own
name to the same extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification.
(a) The Borrowers, jointly and severally, shall reimburse
the Agent and the Arranger for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time
charges of attorneys for the Agent, which attorneys may be employees of
the Agent) paid or incurred by the Agent or the Arranger in connection
with the preparation, negotiation, execution, delivery, syndication,
distribution (including, without limitation, via the internet or
through a service such as Intralinks), review, amendment, modification,
and administration of the Loan Documents. The Borrowers, jointly and
severally, also agree to reimburse the Agent, the Arranger, the LC
Issuer and the Lenders for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time
charges of attorneys for the Agent, the Arranger, the LC Issuer and the
Lenders, which attorneys may be employees of the Agent, the Arranger,
the LC Issuer or the Lenders) paid or incurred by the Agent, the
Arranger, the LC Issuer or any Lender in connection with the
restructuring, collection and enforcement of the Loan Documents.
Expenses being reimbursed by the Borrowers under this Section include,
without limitation, costs and expenses incurred in connection with:
(i) appraisals of all or any portion of the
Collateral, each parcel of real Property or interest in real
Property described in any Collateral Document, which
appraisals shall be in conformity with the applicable
requirements of any law or any governmental rule, regulation,
policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, including,
without limitation, the provisions of Title XI of the
Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, reformed or otherwise modified from time to
time, and any rules promulgated to implement such provisions
(including travel, lodging, meals and other out of pocket
expenses for inspections of the Collateral and the Borrowers'
operations by the Agent) plus the Agent's then customary
charge for field examinations and audits and the preparation
of certain audit reports (the "Reports") which the Borrowers
acknowledge may be prepared by Bank One from time to time and
which the Borrowers agree may be distributed to the Lenders by
Bank One pertaining to the Borrowers' assets from information
furnished to it by or on behalf of the Borrowers, after Bank
One has exercised its rights of inspection pursuant to this
Agreement (such charge is currently $850 per day (or portion
thereof) for each Person retained or employed by the Agent
with respect to each field examination or audit);
(ii) any amendment, modification, supplement,
consent, waiver or other documents prepared with respect to
any Loan Document and the transactions contemplated thereby;
(iii) lien and title searches and title insurance;
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(iv) taxes, fees and other charges for recording
the Mortgages, filing financing statements and continuations,
and other actions to perfect, protect, and continue the
Agent's Liens (including costs and expenses paid or incurred
by the Agent in connection with the consummation of the
Agreement);
(v) sums paid or incurred to take any action
required of any Loan Party under the Loan Documents that such
Loan Party fails to pay or take;
(vi) any litigation, contest, dispute, proceeding
or action (whether instituted by the Agent, the LC Issuer, any
Lender, any Loan Party or any other Person and whether as to
party, witness or otherwise) in any way relating to the
Collateral, the Loan Documents or the transactions
contemplated thereby; and
(vii) costs and expenses of forwarding loan
proceeds, collecting checks and other items of payment, and
establishing and maintaining the Funding Accounts and lock
boxes, and costs and expenses of preserving and protecting the
Collateral.
The foregoing shall not be construed to limit any other
provisions of the Loan Documents regarding costs and expenses to be
paid by the Borrowers. All of the foregoing costs and expenses may be
charged to the Borrowers' Loan Accounts as Revolving Loans or to
another deposit account, all as described in Section 2.17(b).
(b) The Borrowers, jointly and severally, hereby further
agree to indemnify the Agent, the Arranger, the LC Issuer each Lender,
their respective Affiliates, and each of their directors, officers and
employees against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Agent, the
Arranger, the LC Issuer any Lender or any Affiliate is a party thereto)
which any of them incurs arising out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the proceeds
of any Credit Extension hereunder except to the extent that they are
determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of the
Borrowers under this Section 9.6 shall survive the termination of this
Agreement.
9.7. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP in a manner
consistent with that used in preparing the financial statements referred to in
Section 5.5, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Company and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Company's
audited financial statements. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and the Company, the Agent or the Required Lenders shall so request
the Agent, the Lenders and the Loan Parties shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light
of such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and the Company
shall provide to the Agent and the Lenders reconciliation statements showing the
difference in such calculation, together with the delivery of monthly, quarterly
and annual financial statements required hereunder.
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9.9. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between any Loan
Party on the one hand and the Lenders, the LC Issuer and the Agent on the other
hand shall be solely that of debtor and creditor. Neither the Agent, the
Arranger, the LC Issuer nor any Lender shall have any fiduciary responsibilities
to any Loan Party. Neither the Agent, the Arranger, the LC Issuer nor any Lender
undertakes any responsibility to any Loan Party to review or inform such Loan
Party of any matter in connection with any phase of any Loan Party's business or
operations. The Loan Parties agree that neither the Agent, the Arranger, the LC
Issuer nor any Lender shall have liability to any Loan Party (whether sounding
in tort, contract or otherwise) for losses suffered by any Loan Party in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined in
a final non-appealable judgment by a court of competent jurisdiction that such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither the Agent, the Arranger, the LC Issuer
nor any Lender shall have any liability with respect to, and each Loan Party
hereby waives, releases and agrees not to xxx for, any special, indirect,
consequential or punitive damages suffered by any Loan Party in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from any Loan Party in connection with this
Agreement in confidence, except for disclosure (a) to its Affiliates and to
other Lenders and their respective Affiliates, (b) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee,
(c) to regulatory officials, (d) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (e) to any Person in connection
with any legal proceeding to which such Lender is a party, (f) to such Lender's
direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties, (g)
permitted by Section 12.4 and (h) to rating agencies if requested or required by
such agencies in connection with a rating relating to the Credit Extensions
hereunder. Notwithstanding anything herein to the contrary, confidential
information shall not include, and each Lender (and each employee,
representative or other agent of any Lender) may disclose to any and all
Persons, without limitation of any kind, the "tax treatment" and "tax structure"
(in each case, within the meaning of Treasury Regulation Section 1.6011-4) of
the transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to such Lender
relating to such tax treatment or tax structure; provided that, with respect to
any document or similar item that in either case contains information concerning
such tax treatment or tax structure of the transactions contemplated hereby as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to such tax treatment or tax structure.
9.12. Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any Margin Stock for the repayment of the Credit
Extensions provided for herein.
9.13. Disclosure. Each Loan Party and each Lender hereby
acknowledges and agrees that (a) Bank One and/or its Affiliates from time to
time may hold investments in, make other loans to or have other relationships
with any of the Loan Parties and their respective Affiliates, (b) an Affiliate
of Bank One as of the Closing date will hold an interest in the Guggenheim Debt.
9.14 Judgment Currency. If the Agent, on behalf of any Lender,
obtains a judgment or a judgment against a Borrower in a currency other than
Dollars, the obligations of such Borrower in respect of any sum adjudged to be
due to the Agent or the Lenders hereunder or under the Notes (the "Judgment
Amount") shall be discharged only to the extent that, on the Business Day
following receipt by the Agent of
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the Judgment Amount in such currency the Agent, in accordance with normal
banking procedures, purchases Dollars with the Judgment Amount in such currency.
If the amount of Dollars so purchased is less than the amount of Dollars that
could have been purchased with the Judgment Amount on the date or dates the
Judgment Amount (excluding the portion of the Judgment Amount which has accrued
as a result of the failure of such Borrower to pay the sum originally due
hereunder or under the Notes when it was originally due and owing to the Agent
or any Lender hereunder or under the Notes) was originally due and owing to the
Agent or any Lender hereunder or under the Notes (the "Original Due Date") (the
"Loss"), such Borrower agrees as a separate obligation and notwithstanding any
such judgment, to indemnify the Agent or such Lender, as the case may be,
against the Loss, and if the amount of Dollars so purchased exceeds the amount
of Dollars that could have been purchased with the Judgment Amount on the
Original Due Date, the Agent or such Lender agrees to remit such excess to such
Borrower.
9.15 Currency Equivalent Generally. For the purposes of making
valuations or computations under this Agreement (but not for the purposes of the
preparation of any financial statements delivered pursuant hereto), unless
expressly provided otherwise, where a reference is made to a dollar amount the
amount is to be considered as the amount in Dollars and, therefor, each other
currency shall be converted into the Dollar Equivalent.
9.16 No Cross Collateralization. For the avoidance of doubt, the
parties hereto agree that the Collateral securing the Secured Obligations of the
Singapore Loan Parties shall not constitute security for the Obligations of the
Domestic Loan Parties.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One, NA (referred to
in this Agreement except for this Article X, as the "Agent") is hereby appointed
by each of the Lenders as their contractual representative, and the Singapore
Correspondent Agent is hereby appointed by each of the Singapore Lenders as
their contractual representative (each, collectively referred to in this Article
X only, as the "Agent") hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (a) does not hereby assume any fiduciary
duties to any of the Lenders, (b) is a "representative" of the Lenders within
the meaning of the term "secured party" as defined in the UCC and (c) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
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10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any Loan Party, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4. No Responsibility for Credit Extensions, Recitals, etc.
Neither the Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into, or verify (a)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Agent; (d) the
existence or possible existence of any Default or Unmatured Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
Collateral; or (g) the financial condition of any Loan Party, any Guarantor or
any Affiliate of any Loan Party. The Agent shall have no duty to disclose to the
Lenders information that is not required to be furnished by the Loan Parties to
the Agent at such time, but is voluntarily furnished by any Loan Party to the
Agent (either in its capacity as the Agent or in its individual capacity).
10.5. Action on Instructions of the Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by the Agent or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be
entitled to advice of counsel concerning the contractual arrangement between the
Agent and the Lenders and all matters pertaining to the Agent's duties hereunder
and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex, electronic mail message, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Agent, which counsel may be employees of the Agent. For purposes
of determining compliance with the conditions specified in Sections 4.1 and 4.2,
each Lender that has signed this Agreement 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 a Lender unless the Agent shall have received notice from such
Lender prior to the applicable date specifying its objection thereto.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have
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been terminated, in proportion to their Commitments immediately prior to such
termination) (a) for any amounts not reimbursed by the Borrowers for which the
Agent is entitled to reimbursement by the Borrowers under the Loan Documents,
(b) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Agent in connection with any dispute between the Agent
and any Lender or between two or more of the Lenders) and (c) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that, (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent and (ii)
any indemnification required pursuant to Section 3.5(g) shall, notwithstanding
the provisions of this Section 10.8, be paid by the relevant Lender in
accordance with the provisions thereof. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Obligations and termination of
this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Company referring to this Agreement describing such Default or Unmatured Default
and stating that such notice is a "notice of default." In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders; provided, that, the Agent shall not be liable to any Lender for any
failure to do so, except to the extent that such failure is attributable to the
Agent's gross negligence or willful misconduct.
10.10. Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Credit Extensions as any Lender
and may exercise the same as though it were not the Agent, and the term "Lender"
or "Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with any Loan Party
in which such Loan Party is not restricted hereby from engaging with any other
Person, all as if Bank One were not the Agent and without any duty to account
therefor to Lenders. Bank One and its Affiliates may accept fees and other
consideration from any Loan Party for services in connection with this Agreement
or otherwise without having to account for the same to Lenders. The Agent in its
individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Loan Parties and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger 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 and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required
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Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint, on behalf of the Companys and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrowers and the Lenders, a successor Agent. Notwithstanding the previous
sentence, the Agent may at any time without the consent of any Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank as a successor
Agent hereunder. If the Agent has resigned or been removed and no successor
Agent has been appointed, the Lenders may perform all the duties of the Agent
hereunder and the Borrowers shall make all payments in respect of the
Obligations to the Lenders and for all other purposes shall deal directly with
the Lenders. No successor Agent shall be deemed to be appointed hereunder until
such successor Agent has accepted the appointment. Any such successor Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as the Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or
removed the Agent. Upon the effectiveness of the resignation or removal of the
Agent, the resigning or removed Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the effectiveness of
the resignation or removal of an Agent, the provisions of this Article X shall
continue in effect for the benefit of such Agent in respect of any actions taken
or omitted to be taken by it while it was acting as the Agent hereunder and
under the other Loan Documents.
10.13. Delegation to Affiliates. The Borrowers and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.14. Execution of Loan Documents. The Lenders hereby empower and
authorize the Agent, on behalf of the Agent and the Lenders, to execute and
deliver to the Loan Parties the Loan Documents and all related agreements,
certificates, documents, or instruments as shall be necessary or appropriate to
effect the purposes of the Loan Documents. Each Lender agrees that any action
taken by the Agent or the Required Lenders in accordance with the terms of this
Agreement or the other Loan Documents, and the exercise by the Agent or the
Required Lenders of their respective powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall be
binding upon all of the Lenders. The Lenders acknowledge that all of the
Obligations hereunder constitute one debt, secured pari passu by all of the
Collateral.
10.15. Collateral Matters.
(a) The Lenders hereby irrevocably authorize the Agent,
at its option and in its sole discretion, to release any Liens granted
to the Agent by the Loan Parties on any Collateral (i) upon the
termination of the Aggregate Commitment, payment and satisfaction in
full in cash of all Obligations (other than Unliquidated Secured
Obligations), and the cash collateralization of all Unliquidated
Secured Obligations in a manner satisfactory to each affected Lender,
(ii) constituting Property being sold or disposed of if the Loan Party
disposing of such Property certifies to the Agent that the sale or
disposition is made in compliance with the terms of this Agreement (and
the Agent may rely conclusively on any such certificate, without
further inquiry), (iii) constituting Property in which no Loan Party
has at any time during the term of this Agreement owned any interest,
(iv) constituting property leased to a Loan Party under a lease which
has expired or been terminated in a transaction permitted under this
Agreement, (v) owned by or leased to an Loan Party which is subject to
a purchase money security interest or which is the subject of a
Capitalized Lease, in either case, entered into by such Loan Party
pursuant to Section 6.16(c), or (vi) as required to effect any sale or
other disposition of such Collateral in connection with any exercise of
remedies of the Agent and the Lenders pursuant to Section 8.1. Upon
request by the Agent at any time, the Lenders will
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confirm in writing the Agent's authority to release any Liens upon
particular types or items of Collateral pursuant to this Section 10.15.
Except as provided in the preceding sentence, the Agent will not
release any Liens on Collateral without the prior written authorization
of the Required Lenders; provided that, the Agent may in its
discretion, release its Liens on Collateral valued in the aggregate not
in excess of $250,000 during any Fiscal Year without the prior written
authorization of the Lenders.
(b) Upon receipt by the Agent of any authorization
required pursuant to Section 10.15(a) from the Required Lenders of the
Agent's authority to release any Liens upon particular types or items
of Collateral, and upon at least five Business Days prior written
request by the Loan Parties, the Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of its Liens upon such Collateral;
provided that, (i) the Agent shall not be required to execute any such
document on terms which, in the Agent's opinion, would expose the Agent
to liability or create any obligation or entail any consequence other
than the release of such Liens without recourse or warranty and (ii)
such release shall not in any manner discharge, affect, or impair the
Obligations or any Liens (other than those expressly being released)
upon (or obligations of the Loan Parties in respect of) all interests
retained by the Loan Parties, including the proceeds of any sale, all
of which shall continue to constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any
of the Lenders to assure that the Collateral exists or is owned by the
Loan Parties or is cared for, protected, or insured or has been
encumbered, or that the Liens granted to the Agent therein have been
properly or sufficiently or lawfully created, perfected, protected, or
enforced or are entitled to any particular priority, or to exercise at
all or in any particular manner or under any duty of care, disclosure,
or fidelity, or to continue exercising, any of the rights, authorities,
and powers granted or available to the Agent pursuant to any of the
Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, the Agent
may act in any manner it may deem appropriate, in its sole discretion
given the Agent's own interest in the Collateral in its capacity as one
of the Lenders and that the Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing.
(d) Each Lender hereby appoints each other Lender as its
agent for the purpose of perfecting Liens, for the benefit of the Agent
and the Lenders, in assets which, in accordance with Article 9 of the
UCC or any other applicable law can be perfected only by possession.
Should any Lender (other than the Agent) obtain possession of any such
Collateral, such Lender shall notify the Agent thereof, and, promptly
upon the Agent's request therefor shall deliver such Collateral to the
Agent or otherwise deal with such Collateral in accordance with the
Agent's instructions.
(e) Each Lender hereby agrees as follows: (a) such Lender
is deemed to have requested that the Agent furnish such Lender,
promptly after it becomes available, a copy of each Report prepared by
or on behalf of the Agent; (b) such Lender expressly agrees and
acknowledges that neither Bank One nor the Agent (i) makes any
representation or warranty, express or implied, as to the completeness
or accuracy of any Report or any of the information contained therein,
or (ii) shall be liable for any information contained in any Report;
(c) such Lender expressly agrees and acknowledges that the Reports are
not comprehensive audits or examinations, that the Agent, Bank One, or
any other party performing any audit or examination will inspect only
specific information regarding the Loan Parties and will rely
significantly upon the Loan Parties' books and records, as well as on
representations of the Loan Parties' personnel and that Bank One
undertakes no obligation to update, correct or supplement the Reports;
(d) such Lender agrees to keep all Reports confidential and strictly
for its internal use, not share the Report with any Loan Party and not
to distribute any Report to any other Person except as otherwise
permitted pursuant to this Agreement; and (e) without limiting the
generality of any other indemnification provision contained in this
Agreement,
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such Lender agrees (i) that neither Bank One nor the Agent shall be
liable to such Lender or any other Person receiving a copy of the
Report for any inaccuracy or omission contained in or relating to a
Report, (ii) to conduct its own due diligence investigation and make
credit decisions with respect to the Loan Parties based on such
documents as such Lender deems appropriate without any reliance on the
Reports or on the Agent or Bank One, (iii) to hold the Agent and any
such other Person preparing a Report harmless from any action the
indemnifying Lender may take or conclusion the indemnifying Lender may
reach or draw from any Report in connection with any Credit Extensions
that the indemnifying Lender has made or may make to the Loan Parties,
or the indemnifying Lender's participation in, or the indemnifying
Lender's purchase of, any Obligations and (iv) to pay and protect, and
indemnify, defend, and hold the Agent and any such other Person
preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts (including
reasonable attorney fees) incurred by the Agent and any such other
Person preparing a Report as the direct or indirect result of any third
parties who might obtain all or part of any Report through the
indemnifying Lender.
10.16. Documentation Agent. The Lender identified in this Agreement
as the "Documentation Agent" shall not have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all of the Lenders as such. Without limiting the foregoing, none
of such Lenders shall have or be deemed to have a fiduciary relationship with
any Lender. Each Lender hereby makes the same acknowledgments with respect to
such Lenders as it makes with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if any Loan Party becomes insolvent,
however evidenced, or any Default occurs, any and all deposits (including all
account balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Loan Party
may be offset and applied toward the payment of the Secured Obligations owing to
such Lender, whether or not the Secured Obligations, or any part thereof, shall
then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Credit Exposure held by the other Lenders so
that after such purchase each Lender will hold its Pro Rata Share of the
Aggregate Credit Exposure. If any Lender, whether in connection with setoff or
amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Secured Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to respective Pro Rata Share of the Aggregate Credit Exposure. In
case any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Loan Parties and
the Lenders and their respective successors and assigns
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permitted hereby, except that (a) the Loan Parties shall not have the right to
assign its rights or obligations under the Loan Documents without the prior
written consent of each Lender, (b) any assignment by any Lender must be made in
compliance with Section 12.3, and (c) any transfer by Participation must be made
in compliance with Section 12.2. Any attempted assignment or transfer by any
party not made in compliance with this Section 12.1 shall be null and void,
unless such attempted assignment or transfer is treated as a participation in
accordance with Section 12.3. The parties to this Agreement acknowledge that
clause (b) of this Section 12.1 relates only to absolute assignments and this
Section 12.1 does not prohibit assignments creating security interests,
including, without limitation, (x) any pledge or assignment by any Lender of all
or any portion of its rights under this Agreement and any Note to a Federal
Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any Note
to its trustee in support of its obligations to its trustee; provided however,
that no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section 12.3. The Agent may treat
the Person which made any Credit Extension or which holds any Note as the owner
thereof for all purposes hereof unless and until such Person complies with
Section 12.3; provided however, that the Agent may in its discretion (but shall
not be required to) follow instructions from the Person which made any Credit
Extension or which holds any Note to direct payments relating to such Credit
Extension or Note to another Person. Any assignee of the rights to any Credit
Extension or any Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Credit Extension (whether
or not a Note has been issued in evidence thereof), shall be conclusive and
binding on any subsequent holder or assignee of the rights to such Credit
Extension.
12.2. Participations.
(a) Permitted Participants; Effect. Any Lender may at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Credit Exposure of such Lender, any Note
held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged,
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, such Lender shall remain the
owner of its Credit Exposure and the holder of any Note issued to it in
evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrowers under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the
Borrowers and the Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under the Loan Documents.
(b) Voting Rights. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect
to any Credit Extension or Commitment in which such Participant has an
interest which would require consent of all of the Lenders pursuant to
the terms of Section 8.3 or of any other Loan Document.
(c) Benefit of Certain Provisions. Each Loan Party agrees
that each Participant shall be deemed to have the right of setoff
provided in Section 11.1 in respect of its participating interest in
amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a
Lender under the Loan Documents, provided that, each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the
amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 11.1, agrees to
share with each Lender, any amount received pursuant to the exercise of
its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender. Each Borrower
further agrees
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that each Participant shall be entitled to the benefits of Sections
3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 12.3, provided
that, (i) a Participant shall not be entitled to receive any greater
payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of
the Borrowers, and (ii) any Participant not incorporated under the laws
of the U.S. or any state thereof agrees to comply with the provisions
of Section 3.5 to the same extent as if it were a Lender.
12.3. Assignments.
(a) Permitted Assignments. Any Lender may at any time
assign to one or more banks or other entities ("Purchasers") all or any part of
its rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit G (an "Assignment Agreement"). Each such
assignment with respect to a Purchaser which is not a Lender or an Affiliate of
a Lender or an Approved Fund shall either be in an amount equal to the entire
applicable Commitment and Credit Extensions of the assigning Lender or (unless
each Borrower and the Agent otherwise consents) be in an aggregate amount not
less than $5,000,000 in the case of any assignment of a Revolving Commitment and
$1,000,000 in the case of any assignment of a Term Loan or Term Loan Commitment.
The amount of the assignment shall be based on the Commitment or outstanding
Credit Extensions (if the Commitment has been terminated) subject to the
assignment, determined as of the date of such assignment or as of the "Trade
Date," if the "Trade Date" is specified in the assignment. Notwithstanding the
foregoing or anything else in this Agreement to the contrary, each assignment
under this Section 12.3 shall consist of an equal percentage of a Lender's
Revolving Loans and Term Loans.
(b) Consents. The consent of the Borrowers shall be
required prior to an assignment becoming effective unless the Purchaser
is a Lender, an Affiliate of a Lender or an Approved Fund, provided
that, the consent of the Borrowers shall not be required if a Default
has occurred and is continuing. The consent of the Agent shall be
required prior to an assignment becoming effective unless the Purchaser
is a Lender, an Affiliate of a Lender or an Approved Fund. The consent
of the LC Issuer shall be required prior to an assignment of a
Revolving Commitment becoming effective unless the Purchaser is a
Lender with a Revolving Commitment. Any consent required under this
Section 12.3(b) shall not be unreasonably withheld or delayed.
(c) Effect; Effective Date. Upon (i) delivery to the
Agent of a duly executed Assignment Agreement, together with any
consents required by Sections 12.3(a) and 12.3(b), and (ii) payment of
a $3,500 fee to the Agent (which shall be paid by the assigning Lender)
for processing such assignment (unless such fee is waived by the
Agent), such Assignment Agreement shall become effective on the
effective date specified by the Agent in such Assignment Agreement. The
Assignment Agreement shall contain a representation by the Purchaser to
the effect that none of the consideration used to make the purchase of
the Commitment and Credit Exposure under the applicable Assignment
Agreement constitutes "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the effective date
of such Assignment Agreement, such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed
by or on behalf of the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party thereto, and the transferor Lender shall
be released with respect to the Commitment and Credit Exposure assigned
to such Purchaser without any further consent or action by the Loan
Parties, the Lenders or the Agent. In the case of an Assignment
Agreement covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a Lender hereunder
but shall continue to be entitled to the benefits of, and subject to,
those provisions of this Agreement and the other Loan Documents which
survive payment of the Obligations and termination of the applicable
agreement. Any assignment or
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transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 12.3 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with Section 12.2. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3(c), the transferor Lender, the Agent and the Borrowers shall make
appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes
or, as appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their respective Commitments,
as adjusted pursuant to such assignment.
(d) Register. The Agent, acting solely for this purpose
as an agent of the Borrowers, shall maintain at one of its offices in
the U.S. a copy of each Assignment Agreement delivered to it and a
register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Credit Extensions
owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). Absent manifest error, the entries in the Register
shall be conclusive, and the Borrowers, the Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by any Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.
12.4. Dissemination of Information. Each Loan Party authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrowers and their Subsidiaries,
including without limitation any information contained in any Reports; provided
that, each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document
is transferred to any Transferee which is not incorporated under the laws of
the U.S. or any state thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to
comply with the provisions of Section 3.5(d).
12.6. Assignment by LC Issuer. Notwithstanding anything contained
herein, if at any time Bank One assigns all of its Revolving Commitment and
Revolving Loans pursuant to Section 12.3, Bank One may, upon 30 days' notice to
the Company and the Lenders, resign as LC Issuer. In the event of any such
resignation as LC Issuer, the Company shall be entitled to appoint from among
the Lenders a successor LC Issuer hereunder; provided however, that no failure
by the Company to appoint any such successor shall affect the resignation of
Bank One as LC Issuer. If Bank One resigns as LC Issuer, it shall retain all the
rights and obligations of the LC Issuer hereunder with respect to the Facility
LCs outstanding as of the effective date of its resignation as LC Issuer and all
LC Obligations with respect thereto (including the right to require the Lenders
to make Revolving Loans or fund risk participations in outstanding Reimbursement
Obligations pursuant to Section 2.1.2(d)).
ARTICLE XIII
NOTICES
13.1. Notices; Effectiveness; Electronic Communication
(a) Notices Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone (and
except as provided in paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by
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hand or overnight courier service, mailed by certified or registered
mail or sent by telecopier as follows:
(i) if to any Loan Party, such notice shall be
delivered to the Company on behalf of such Loan
Party, at the Company's address or telecopier number
set forth on the signature page hereof;
(ii) if to the Agent, at its address or
telecopier number set forth on the signature page
hereof;
(iii) if to the LC Issuer, at its address or
telecopier number set forth on the signature page
hereof;
(iv) if to a Lender, to it at its address or
telecopier number set forth on the signature pages
hereto.
Notices sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given
when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of
business on the next Business Day for the recipient). Notices delivered
through electronic communications to the extent provided in paragraph
(b) below, shall be effective as provided in said paragraph (b).
(b) Electronic Communications. Notices and other
communications to the Lenders and the LC Issuer hereunder may be
delivered or furnished by electronic communication (including e-mail
and internet or intranet websites) pursuant to procedures approved by
the Agent or as otherwise determined by the Agent, provided that, the
foregoing shall not apply to notices to any Lender or the LC Issuer
pursuant to Article II if such Lender or the LC Issuer, as applicable,
has notified the Agent that it is incapable of receiving notices under
such Article by electronic communication. The Agent or any Loan Party
may, in its respective discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it or as it otherwise determines, provided that
such determination or approval may be limited to particular notices or
communications. Notwithstanding the foregoing, in every instance, the
Borrowers shall be required to provide paper copies of the Compliance
Certificates required by Section 6.1(e) to the Agent.
Unless the Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient
(such as by the "return receipt requested" function, as available,
return e-mail or other written acknowledgement), provided that if such
notice or other communication is not given during the normal business
hours of the recipient, such notice or communication shall be deemed to
have been given at the opening of business on the next Business Day for
the recipient, and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by
the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication
is available and identifying the website address therefor.
13.2. Change of Address, Etc. Any party hereto may change its
address or telecopier number for notices and other communications hereunder by
notice to the other parties hereto.
ARTICLE XIV
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COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Loan Parties, the
Agent, the LC Issuer and the Lenders and each party has notified the Agent by
facsimile transmission or telephone that it has taken such action.
ARTICLE XV
GUARANTY
15.1. Guaranty. Each Guarantor, subject to the last sentence of this
Section 15.1, hereby agrees that it is jointly and severally liable for, and, as
primary obligor and not merely as surety, absolutely and unconditionally
guarantees to the Lenders the prompt payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of the
Secured Obligations and all costs and expenses including, without limitation,
all out-of-pocket court costs and reasonable attorneys' and paralegals' fees and
expenses paid or incurred by the Agent, the LC Issuer and the Lenders in
endeavoring to collect all or any part of the Secured Obligations from, or in
prosecuting any action against, the Borrowers, any Guarantor or any other
guarantor of all or any part of the Secured Obligations (such costs and
expenses, together with the Secured Obligations, collectively the "Guaranteed
Obligations"). Each Guarantor further agrees that the Guaranteed Obligations may
be extended or renewed in whole or in part without notice to or further assent
from it, and that it remains bound upon its guarantee notwithstanding any such
extension or renewal. Notwithstanding anything contained in this Article XV or
elsewhere to the contrary, the Guaranteed Obligations which are guaranteed by
any Singapore Loan Party are limited solely to the Singapore Obligations.
15.2. Guaranty of Payment. This Guaranty is a guaranty of payment
and not of collection. Each Guarantor waives any right to require the Agent, the
LC Issuer or any Lender to xxx any Borrower, any Guarantor, any other guarantor,
or any other person obligated for all or any part of the Guaranteed Obligations,
or otherwise to enforce its payment against any collateral securing all or any
part of the Guaranteed Obligations.
15.3. No Discharge or Diminishment of Guaranty.
(a) Except as otherwise provided for herein and to the
extent provided for herein, the obligations of each Guarantor hereunder
are unconditional and absolute and not subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Guaranteed Obligations),
including:
(i) any claim of waiver, release, extension,
renewal, settlement, surrender, alteration, or compromise of
any of the Guaranteed Obligations, by operation of law or
otherwise;
(ii) any change in the corporate existence,
structure or ownership of the Borrowers or any other guarantor
of or other person liable for any of the Guaranteed
Obligations;
(iii) any insolvency, bankruptcy, reorganization
or other similar proceeding affecting any Borrower, any
Guarantor, or any other guarantor of or other person liable
for
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any of the Guaranteed Obligations, or their assets or any
resulting release or discharge of any obligation of any
Borrower, any Guarantor, or any other guarantor of or other
person liable for any of the Guaranteed Obligations; or
(iv) the existence of any claim, setoff or other
rights which any Guarantor may have at any time against any
Borrower, any Guarantor, any other guarantor of the Guaranteed
Obligations, the Agent, the LC Issuer, any Lender, or any
other person, whether in connection herewith or in any
unrelated transactions.
(b) The obligations of each Guarantor hereunder are not
subject to any defense or setoff, counterclaim, recoupment, or
termination whatsoever by reason of the invalidity, illegality, or
unenforceability of any of the Guaranteed Obligations or otherwise, or
any provision of applicable law or regulation purporting to prohibit
payment by any Borrower, any Guarantor or any other guarantor of or
other person liable for any of the Guaranteed Obligations, of the
Guaranteed Obligations or any part thereof.
(c) Further, the obligations of any Guarantor hereunder
are not discharged or impaired or otherwise affected by:
(i) the failure of the Agent, the LC Issuer or
any Lender to assert any claim or demand or to enforce any
remedy with respect to all or any part of the Guaranteed
Obligations;
(ii) any waiver or modification of or supplement
to any provision of any agreement relating to the Guaranteed
Obligations;
(iii) any release, non-perfection, or invalidity
of any indirect or direct security for the obligations of any
Borrower for all or any part of the Guaranteed Obligations or
any obligations of any other guarantor of or other person
liable for any of the Guaranteed Obligations;
(iv) any action or failure to act by the Agent,
the LC Issuer or any Lender with respect to any collateral
securing any part of the Guaranteed Obligations; or
(v) any default, failure or delay, willful or
otherwise, in the payment or performance of any of the
Guaranteed Obligations, or any other circumstance, act,
omission or delay that might in any manner or to any extent
vary the risk of such Guarantor or that would otherwise
operate as a discharge of any Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of
the Guaranteed Obligations).
15.4. Defenses Waived. To the fullest extent permitted by applicable
law, each Guarantor hereby waives any defense based on or arising out of any
defense of any Borrower or any Guarantor or the unenforceability of all or any
part of the Guaranteed Obligations from any cause, or the cessation from any
cause of the liability of any Borrower or any Guarantor, other than the
indefeasible payment in full in cash of the Guaranteed Obligations. Without
limiting the generality of the foregoing, each Guarantor irrevocably waives
acceptance hereof, presentment, demand, protest and, to the fullest extent
permitted by law, any notice not provided for herein, as well as any requirement
that at any time any action be taken by any person against any Borrower, any
Guarantor, any other guarantor of any of the Guaranteed Obligations, or any
other person. The Agent may, at its election, foreclose on any Collateral held
by it by one or more judicial or nonjudicial sales, accept an assignment of any
such Collateral in lieu of foreclosure or otherwise act or fail to act with
respect to any collateral securing all or a part of the Guaranteed Obligations,
compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with any Borrower, any Guarantor, any other guarantor or any other
person liable on any part of the Guaranteed Obligations or exercise any other
right or
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remedy available to it against any Borrower, any Guarantor, any other guarantor
or any other person liable on any of the Guaranteed Obligations, without
affecting or impairing in any way the liability of such Guarantor under this
Guaranty except to the extent the Guaranteed Obligations have been fully and
indefeasibly paid in cash. To the fullest extent permitted by applicable law,
each Guarantor waives any defense arising out of any such election even though
that election may operate, pursuant to applicable law, to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of any
Guarantor against the Borrower, any other guarantor or any other person liable
on any of the Guaranteed Obligations, as the case may be, or any security.
15.5. Rights of Subrogation. No Guarantor will assert any right,
claim or cause of action, including, without limitation, a claim of subrogation,
contribution or indemnification that it has against any Borrower, any Guarantor,
any person liable on the Guaranteed Obligations, or any collateral, until the
Loan Parties and the Guarantors have fully performed all their obligations to
the Agent, the LC Issuer and the Lender.
15.6. Reinstatement; Stay of Acceleration. If at any time any
payment of any portion of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy, or
reorganization of any Borrower or otherwise, each Guarantor's obligations under
this Guaranty with respect to that payment shall be reinstated at such time as
though the payment had not been made and whether or not the Agent, the LC Issuer
and the Lenders are in possession of this Guaranty. If acceleration of the time
for payment of any of the Guaranteed Obligations is stayed upon the insolvency,
bankruptcy or reorganization of any Borrower, all such amounts otherwise subject
to acceleration under the terms of any agreement relating to the Guaranteed
Obligations shall nonetheless be payable by the Guarantors forthwith on demand
by the Lender.
15.7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrowers' financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
each Guarantor assumes and incurs under this Guaranty, and agrees that neither
the Agent, the LC Issuer nor any Lender shall have any duty to advise any
Guarantor of information known to it regarding those circumstances or risks.
15.8. Termination. The Lenders may continue to make loans or extend
credit to any Borrower based on this Guaranty until five days after it receives
written notice of termination from any Guarantor. Notwithstanding receipt of any
such notice, each Guarantor will continue to be liable to the Lender for any
Guaranteed Obligations created, assumed or committed to prior to the fifth day
after receipt of the notice, and all subsequent renewals, extensions,
modifications and amendments with respect to, or substitutions for, all or any
part of that Guaranteed Obligations.
15.9. Taxes. All payments of the Guaranteed Obligations will be made
by each Guarantor free and clear of and without deduction for or on account of
any and all present or future taxes, levies, imposts, duties, charges,
deductions or withholdings of whatever nature imposed by any governmental
authority with respect to such payments, and any and all liabilities with
respect to the foregoing, but excluding franchise taxes and taxes imposed on
overall net income of the Lender by the U.S. or the jurisdiction in which the
Lender's applicable Lending Installation is located (collectively, "Taxes"). If
any Guarantor is required by law to deduct any Taxes from or in respect of any
sum payable to the Lenders under this Guaranty, (a) the sum payable must be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this provision) the
Lenders receive an amount equal to the sum they would have received had no such
deductions been made, (b) the Guarantors must then make such deductions, and
must pay the full amount deducted to the relevant authority in accordance with
applicable law, and (c) the Guarantors must furnish to the Lender within
forty-five days after their due date certified copies of all official receipts
evidencing payment thereof.
15.10. Severability. The provisions of this Guaranty are severable,
and in any action or proceeding involving any state corporate law, or any state,
federal or foreign bankruptcy, insolvency, reorganization or other law affecting
the rights of creditors generally, if the obligations of any Guarantor under
this Guaranty
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would otherwise be held or determined to be avoidable, invalid or unenforceable
on account of the amount of such Guarantor's liability under this Guaranty,
then, notwithstanding any other provision of this Guaranty to the contrary, the
amount of such liability shall, without any further action by the Guarantors or
the Lenders, be automatically limited and reduced to the highest amount that is
valid and enforceable as determined in such action or proceeding (such highest
amount determined hereunder being the relevant Guarantor's "Maximum Liability."
This Section with respect to the Maximum Liability of each Guarantor is intended
solely to preserve the rights of the Lenders to the maximum extent not subject
to avoidance under applicable law, and no Guarantor nor any other person or
entity shall have any right or claim under this Section with respect to such
Maximum Liability, except to the extent necessary so that the obligations of any
Guarantor hereunder shall not be rendered voidable under applicable law. Each
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the Maximum Liability of each Guarantor without impairing this
Guaranty or affecting the rights and remedies of the Lenders hereunder, provided
that, nothing in this sentence shall be construed to increase any Guarantor's
obligations hereunder beyond its Maximum Liability.
15.11. Contribution. In the event any Guarantor (a "Paying
Guarantor") shall make any payment or payments under this Guaranty or shall
suffer any loss as a result of any realization upon any collateral granted by it
to secure its obligations under this Guaranty, each other Guarantor (each a
"Non-Paying Guarantor") shall contribute to such Paying Guarantor an amount
equal to such Non-Paying Guarantor's "Fair Share" of such payment or payments
made, or losses suffered, by such Paying Guarantor. For purposes of this Article
XV, each Non-Paying Guarantor's "Fair Share" with respect to any such payment or
loss by a Paying Guarantor shall be determined as of the date on which such
payment or loss was made by reference to the ratio of (i) such Non-Paying
Guarantor's Maximum Liability as of such date (without giving effect to any
right to receive, or obligation to make, any contribution hereunder) or, if such
Non-Paying Guarantor's Maximum Liability has not been determined, the aggregate
amount of all monies received by such Non-Paying Guarantor from the Borrowers
after the date hereof (whether by loan, capital infusion or by other means) to
(ii) the aggregate Maximum Liability of all Guarantors hereunder (including such
Paying Guarantor) as of such date (without giving effect to any right to
receive, or obligation to make, any contribution hereunder), or to the extent
that a Maximum Liability has not been determined for any Guarantor, the
aggregate amount of all monies received by such Guarantors from the Borrowers
after the date hereof (whether by loan, capital infusion or by other means).
Nothing in this provision shall affect any Guarantor's several liability for the
entire amount of the Guaranteed Obligations (up to such Guarantor's Maximum
Liability). Each of the Guarantors covenants and agrees that its right to
receive any contribution under this Guaranty from a Non-Paying Guarantor shall
be subordinate and junior in right of payment to the payment in full in cash of
the Guaranteed Obligations. This provision is for the benefit of both the Agent,
the LC Issuer, the Lenders and the Guarantors and may be enforced by any one, or
more, or all of them in accordance with the terms hereof.
15.12. Lending Installations. The Guaranteed Obligations may be
booked at any Lending Installation. All terms of this Guaranty apply to and may
be enforced by or on behalf of any Lending Installation.
15.13 Liability Cumulative. The liability of each Loan Party as a
Guarantor under this Article XV is in addition to and shall be cumulative with
all liabilities of each Loan Party to the Agent, the LC Issuer and the Lenders
under this Agreement and the other Loan Documents to which such Loan Party is a
party or in respect of any obligations of liabilities of the other Loan Parties,
without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the
contrary.
ARTICLE XVI
CASH MANAGEMENT
16.1. Lockbox and Cash Management Account. Each Loan Party has
obtained and shall continue to maintain during the term of this Agreement the
post office box at the Post Office bearing the address set
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forth on Schedule 16.1, or such other address or deposit account as the Agent
may notify the Company from time to time (the "Locked Boxes"). The Singapore
Borrower shall maintain its Locked Box in Singapore. Each Loan Party shall
notify all of its customers and Account Debtors to forward all remittances of
every kind due to such Loan Party ("Remittances") to its Locked Box (such
notices to be in such form and substance as the Agent may require from time to
time). Promptly upon receipt thereof, the Loan Parties shall deposit all other
proceeds of Accounts Receivable or other Collateral into the Locked Boxes (or
into a Cash Management Account). The Agent and the Singapore Correspondent
Lender, as the case may be, shall have sole access to the Locked Boxes at all
times, and each Loan Party shall take all action necessary to grant such Lenders
such sole access. At no time shall any Loan Party remove any item from the
Locked Boxes without the prior written consent of the Agent or the Singapore
Correspondent Lender, as the case may be, and each Loan Party shall notify each
customer or Account Debtor not to pay any Remittance to any other place or
address without the prior written consent of the Agent or the Singapore
Correspondent Lender, as the case may be. If a Loan Party should neglect or
refuse to notify any customer or Account Debtor to pay any Remittance to its
Locked Box after notice from the Agent or the Singapore Correspondent Lender, as
the case may be, such Lender shall be entitled to make such notification. Each
Loan Party hereby grants to each of such Lenders an irrevocable power of
attorney, coupled with an interest, to take in such Loan Party's name all action
necessary (a) to grant the such Lenders sole access to its Locked Box, (b)
during the continuance of a Default, to contact Account Debtors to pay any
Remittance to such Locked Box in the event that any such Account Debtor is not
paying any such Remittance to such Locked Box, (c) during the continuance of a
Default, to contact Account Debtors for any reason, and (d) to endorse each
Remittance delivered to its Locked Box for deposit to such Borrower's Cash
Management Account. Each Borrower shall establish and, unless otherwise directed
by the Agent or the Singapore Correspondent Lender, as the case may be, maintain
a cash management account with such Lender (each, a "Cash Management Account").
Each Borrower shall enter into an agreement with the Agent or the Singapore
Correspondent Lender, as the case may be, relating to such Loan Party's Cash
Management Account, in form and substance reasonably satisfactory to the such
Lender.
16.2 Application of Payments. So long as no Default shall be
continuing, deposits to the Cash Management Account in respect of each Borrower
shall be credited to the Borrowers as follows: (i) first, to the payment of any
fees, expenses or other Obligations (other than Obligations to pay principal and
interest relating to the Loans and Obligations with respect to Banking Services
and Rate Management Obligations) then due and payable by the Borrowers to the
Applicable Agent or Lenders hereunder or under any of the other Loan Documents;
(ii) second, to the ratable payment of interest due on the Revolving Loans and
Export-Import Loans, as the case may be, made to the Borrowers; (iii) third, to
late charges until paid in full; (iv) fourth, to the installments then due and
payable with respect to the Term Loans installments then due; (v) fifth, to the
outstanding principal balance of the applicable Borrower's Revolving Loans and
Export-Import Loans, as the case may be, and (vi) sixth, to the extent of any
excess not so credited, such deposits shall be made available to each Borrower
by deposit in such Borrower's operating Account with the Applicable Agent. Upon
the occurrence and during the continuance of an Default which has not been
waived in writing, all such deposits to the Cash Management Account in respect
of a Borrower shall be credited to such Borrower as follows: (1) to the extent
such deposits constitute the proceeds of the Export-Import Collateral, such
deposits shall be applied directly to the outstanding principal, accrued and
unpaid interest, and fees related to the Export-Import Loan and (2) all deposits
other than those described in the immediately preceding subparagraph (1) (except
to the extent such deposits remain after the Export-Import Loan is indefeasibly
paid in full), (a) first to the payment of any fees, expenses or Obligations
(other than Obligations to pay principal and interest relating to the Advances)
then due and payable by the Borrowers to the Applicable Agent or Lenders
hereunder or under any of the other Loan Documents; (b) second, to the ratable
payment of interest due on the Loans and Export-Import Loans, as the case may
be, made to the Borrowers; (c) third, to late charges until paid in full; (d)
fourth, to the principal installments then due and payable with respect to the
Term Loans; (e) fifth, to the outstanding principal amount of any Revolving
Loans and Export-Import Loans, as the case may be, in such order as the Required
Lenders or Bank One, NA, as the case may be, may choose in their sole
discretion; (f) sixth, at the Required Lenders' option, in their sole and
absolute discretion, to any and all other outstanding Obligations of the
Borrowers (other than in respect of the
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aggregate undrawn amount of any Facility LC outstanding for the account of the
Borrowers) in such order as the Required Lenders may choose in their sole
discretion; and (g) seventh, as cash collateral security against the aggregate
undrawn amount of any Letter of Credit outstanding for the account of the
Borrowers and any other Obligations (whether then or thereafter outstanding,
including, without limitation, to the extent not indefeasibly paid in full by
the deposits described in subparagraph (1) above, the Export-Import Loan) of the
Borrowers. For the purpose of calculating the Borrowers' interest and
determining the aggregate Loans outstanding, all collections and remittances
shall be credited to the applicable Borrowers: (i) in the case of collections
and remittances received by wire transfer prior to 11:00 a.m. (local time), on
the same Business Day as received, (ii) in the case of collections and
remittances received by wire transfer after 11:00 a.m. (local time), on the next
succeeding Business Day after such receipt and (iii) in the case of all other
collections and remittances received, conditional on final payment, one (1)
Business Day after the Applicable Agent receives notice of the deposit of the
proceeds of such collections and remittances into the Cash Management Account
prior to noon (local time), provided however in the case of clause (iii) above,
that in the event that the Applicable Agent receives notice of such deposit
later than noon (local time) on any Business Day, such collection or remittance
deposited shall be credited to the Borrowers (conditional upon final collection)
two (2) Business Days after such deposit. From time to time, upon advance
written notice to the Company, on behalf of the Borrowers, the Applicable Agent
may adopt such additional or modified regulations and procedures as it may deem
reasonable and appropriate with respect to the operation of the Cash Management
Account and the services to be provided by such agent under this Agreement.
ARTICLE XVII
RELATIONSHIP OF THE COMPANY AND THE OTHER LOAN PARTIES
17.1. Notices. Each Loan Party shall immediately notify the Company
of the occurrence of any Default or Unmatured Default hereunder referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default." Any notice provided to the Company
hereunder shall constitute notice to each Loan Party on the date received by the
Company.
17.2. Execution of Loan Documents; Borrowing Base Certificate. The
Loan Parties hereby empower and authorize the Company, on behalf of the Loan
Parties, to execute and deliver to the Agent and the Lenders the Loan Documents
and all related agreements, certificates, documents, or instruments as shall be
necessary or appropriate to effect the purposes of the Loan Documents, including
without limitation, the Aggregate Borrowing Base Certificates and the Compliance
Certificates. Each Loan Party agrees that any action taken by the Company in
accordance with the terms of this Agreement or the other Loan Documents, and the
exercise by the Company of its powers set forth therein or herein, together with
such other powers that are reasonably incidental thereto, shall be binding upon
all of the Loan Parties.
17.3. Reporting. Each Loan Party hereby agrees that it shall furnish
promptly after each Fiscal Month to the Company, and in no event later than 20
days after the end of each Fiscal Month, a copy of its Borrowing Base
Certificate and the calculation of its financial covenants, on which the Company
shall rely to prepare the Aggregate Borrowing Base Certificates and Compliance
Certificates required pursuant to the provisions of this Agreement. The Company
shall retain all such Borrowing Base Certificates until the Facility Termination
Date and shall deliver same to the Agent upon the Agent's request therefor.
17.4. Disbursement of Loan Proceeds. Upon the receipt by BEM
Services Inc. and the Singapore Borrower of the proceeds of any Advance, such
Borrower shall immediately disburse such proceeds to itself and to the other
Loan Parties via intercompany loans, in each case based upon each such
Borrower's Borrowing Base Certificate. After such initial disbursement, the Loan
Parties may make as many additional intercompany loans as they desire to the
extent permitted pursuant to the terms hereof and without regard to any
Borrower's Borrowing Base Certificate.
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17.5 The Company as Representative. For purposes of this Agreement,
each Loan Party hereby: (i) authorizes the Company to make such requests, give
such notices or furnish such certificates to the Agent, the Singapore
Correspondent Lender, or the LC Issuer as may be required or permitted by this
Agreement for the benefit of such Loan Party and to give any consents on behalf
of such Loan Party required by Section 12.2(b) of this Agreement in connection
with assignments by the Lenders pursuant thereto and (ii) authorizes the Agent,
the Singapore Correspondent Lender, and the LC Issuer to treat such requests,
notices, certificates or consents made, given or furnished by the Company as
having been made, given or furnished by such Loan Party. Each Loan Party agrees
to be bound by all such requests, notices, certificates and consents and other
such actions by the Company and agrees that all notices to and demands upon the
Company in respect of any Loan Party shall constitute effective notice to and
demand upon such Loan Party for all purposes hereunder. The Agent, the Singapore
Correspondent Lender, and the LC Issuer shall be entitled to rely upon all such
requests, notices, certificates and consents made, given or furnished by the
Company pursuant to this Agreement or any other Loan Documents as being made or
furnished on behalf of, and with the effect of irrevocably binding, any Loan
Party.
ARTICLE XVIII
USA PATRIOT ACT NOTIFICATION
The following notification is provided to the Loan Parties pursuant to
Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To
help the government fight the funding of terrorism and money laundering
activities, Federal Law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity
that opens an account, including any deposit account, treasury
management account, loan, other extension of credit, or other financial
services product. What this means for each Loan Party: When a Loan
Party opens an account, if such Loan Party is an individual, the Agent
will ask for such Loan Party's name, residential address, tax
identification number, date of birth, and other information that will
allow the Agent and the Lenders to identify such Loan Party, and, if a
Loan Party is not an individual, the Agent will ask for such Loan
Party's name, tax identification number, business address, and other
information that will allow the Agent and the Lenders to identify such
Loan Party. The Agent may also ask, if such Loan Party is an
individual, to see such Loan Party's driver's license or other
identifying documents, and if such Loan Party is not an individual, to
see such Loan Party's legal organizational documents or other
identifying documents.
ARTICLE XIX
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
19.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF OHIO, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE
TO NATIONAL BANKS.
19.2. CONSENT TO JURISDICTION. EACH LOAN PARTY HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR OHIO STATE
COURT SITTING IN CLEVELAND, OHIO IN ANY ACTION OR PROCEEDING ARISING OUT OF
98
OR RELATING TO ANY LOAN DOCUMENTS AND EACH LOAN PARTY HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS
AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY LOAN PARTY AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTION WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CLEVELAND, OHIO.
19.3. WAIVER OF JURY TRIAL. EACH LOAN PARTY, THE AGENT, THE LC
ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
19.4 CONFESSION OF JUDGMENT. THE LOAN PARTIES HEREBY AUTHORIZE ANY
ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF RECORD IN ANY COUNTY IN THE STATE OF
OHIO OR ELSEWHERE WHERE A LOAN PARTY HAS A PLACE OF BUSINESS, SIGNED THIS NOTE
OR CAN BE FOUND, AFTER THE AGENT OR REQUIRED LENDERS DECLARE A DEFAULT AND
ACCELERATE THE BALANCES DUE UNDER THIS AGREEMENT, TO WAIVE THE ISSUANCE OF
SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST THE LOAN PARTIES IN FAVOR OF THE
AGENT AND LENDERS FOR THE AMOUNTS THEN APPEARING DUE, TOGETHER WITH THE COSTS OF
SUIT, AND THEREUPON TO RELEASE ALL ERRORS AND WAIVE ALL RIGHT OF APPEAL AND STAY
OF EXECUTION. THE LOAN PARTIES AGREE AND CONSENT THAT THE ATTORNEY CONFESSING
JUDGMENT ON BEHALF OF THE LOAN PARTIES HEREUNDER MAY ALSO BE COUNSEL TO THE
AGENT, LENDERS OR ANY OF THEIR AFFILIATES, WAIVES ANY CONFLICT OF INTEREST WHICH
MIGHT OTHERWISE ARISE, AND CONSENTS TO THE AGENT OR LENDERS PAYING SUCH
CONFESSING ATTORNEY A LEGAL FEE OR ALLOWING SUCH ATTORNEY'S FEES TO BE PAID FROM
ANY PROCEEDS OF COLLECTION OF AGREEMENT OR COLLATERAL SECURITY THEREFOR.
99
[SIGNATURE PAGES BROKEN INTO A SEPARATE DOCUMENT]
100
COMMITMENT SCHEDULE
REVOLVING TERM A TERM B AGGREGATE SINGAPORE EXPORT-IMPORT
LENDER COMMITMENT LOAN COMMITMENT LOAN COMMITMENT COMMITMENT SUB-COMMITMENT LOAN
------------------------ ----------- --------------- --------------- ------------- -------------- -------------
Bank One, NA $32,382,000 $4,570,800 $3,047,200 $ 40,000,000 $4,000,000 $7,500,000
LaSalle Bank National 16,192,000 2,284,800 1,523,200 20,000,000
Association
Orix Financial Services, 12,142,000 1,714,800 1,143,200 15,000,000
Inc.
Fifth Third Bank 12,142,000 1,714,800 1,143,200 15,000,000
The CIT Group/Business 8,094,000 1,143,600 762,400 10,000,000
Credit, Inc.
RZB Finance LLC 4,048,000 571,200 380,800 5,000,000
----------- --------------- --------------- ------------- -------------- -------------
TOTAL $85,000,000 $12,000,000 $8,000,000 $105,000,000 $4,000,000 $7,500,000
----------- --------------- --------------- ------------- -------------- -------------
Commitment Schedule
PRICING SCHEDULE
APPLICABLE
APPLICABLE MARGIN FEE RATE
-------------------------------------------------------------------------- ----------
FIXED CHARGE FIXED RATE
COVERAGE REVOLVER TERM TERM TERM
RATIO MARGIN/ FLOATING TERM LOAN A LOAN A LOAN B LOAN B UNUSED
(TRAILING 4 LETTER OF RATE REVOLVER EURODOLLAR ABR EURODOLLAR ABR COMMITMENT
LEVEL QUARTERS) CREDIT FEE MARGIN MARGIN MARGIN MARGIN MARGIN FEE
---- ----------------------- ------------ ------------- ----------- ------- ---------- ------- ----------
4 > than = to 6.00 to 1.0 3.00% 1.25% 3.50% 1.50% 3.75% 1.75% 0.375%
3 < 6.00 to 1.0 2.75% 1.00% 3.25% 1.25% 3.50% 1.50% 0.375%
but
> than = to 5.00 to 1.0
2 < 5.00 to 1.0 2.50% .75% 3.00% 1.00% 3.25% 1.25% 0.375%
but
> than = to 3.75 to 1.0
1 < 3.75 to 1.0 2.25% .50% 2.75% .75% 3.00% 1.00% 0.375%
"Financials" means the annual or quarterly financial statements of the
Company delivered pursuant to Section 6.1 of the Credit Agreement.
The applicable margins and fees shall initially be set at Level 3 and
thereafter shall be determined in accordance with the foregoing table based on
the Company's most recent Financials commencing the Financials dated July 31,
2004. Adjustments, if any, to the applicable margins and fees shall be effective
5 Business Days after the Agent has received the applicable Financials. If the
Company fails to deliver the Financials to the Agent at the time required
pursuant to the Credit Agreement, then the applicable margins and fees shall be
the highest applicable margins and fees set forth in the foregoing table until 5
days after such Financials are so delivered.
Pricing Schedule
EXHIBIT A
BORROWING NOTICE
Date: ______________________, 20__
To: Bank One, NA, as Agent for the Lenders
This Borrowing Notice is furnished pursuant to Section 2.1.1(e) of that
certain Credit Agreement dated as of December 4, 2003 (as amended, modified,
renewed or extended from time to time, the "Agreement") among the Borrowers, the
other Loan Parties, the Lenders party thereto and Bank One, NA, as Agent for the
Lenders and as LC Issuer. Unless otherwise defined herein, capitalized terms
used in this Borrowing Notice have the meanings ascribed thereto in the
Agreement.
The Company hereby notifies the Agent of its request of the following
Advance:
(1) Borrower: _____________________
(2) Borrowing Date (must be a Business Day): ______________________________
(3) Aggregate Amount of the Advance: $________________________________
(4) Type of Advance:
Singapore Floating Rate Advance __________
Singapore Fixed Rate Advance __________
Domestic Floating Rate Advance __________
Eurodollar Advance __________
(5) Duration of Interest Period:
One Month __________
Two Months __________
Three Months __________
Six Months __________
The Company hereby represents, on behalf of itself and the other Loan
Parties, that, as of the date of this Borrowing Notice:
(a) There exists no Default or Unmatured Default and no Default or
Unmatured Default shall result from this Credit Extension.
(b) The representations and warranties contained in Article V of
the Agreement are true and correct, except to the extent any
such representation or warranty is stated to relate solely to
an earlier date.
________________________
By:______________________
Name:_______________
Title:______________
Exhibit A
EXHIBIT B
CONVERSION/CONTINUATION NOTICE
Date: ______________________, 20__
To: Bank One, NA, as Agent for the Lenders
This Conversion/Continuation Notice is furnished pursuant to
Section 2.7 of that certain Credit Agreement dated as of December 4, 2003 (as
amended, modified, renewed or extended from time to time, the "Agreement") the
Borrowers, the other Loan Parties, the Lenders party thereto and Bank One, NA,
as Agent for the Lenders and as LC Issuer. Unless otherwise defined herein,
capitalized terms used in this Borrowing Notice have the meanings ascribed
thereto in the Agreement.
The Company hereby notifies the Agent of its request to [SELECT ONE]:
(1) convert the [Singapore/ US] Floating Rate Advance in the
amount of $_________ into a [Eurodollar/Singapore] Advance
with an Interest Period duration of: ________ month(s)
(2) continue the [Eurodollar/Singapore] Advance described below:
(a) Date of Continuation (must be a Business Day): ___________
(b) Aggregate Amount of Advance: $___________________________
(c) The duration of the Interest Period applicable thereto:
________ month(s)
The Company hereby represents, on behalf of itself and the other Loan
Parties, that, as of the date of this Conversion/Continuation Notice:
(a) There exists no Default or Unmatured Default and no Default or
Unmatured Default shall result from this Credit Extension.
(b) The representations and warranties contained in Article V of
the Agreement are true and correct, except to the extent any
such representation or warranty is stated to relate solely to
an earlier date.
_________________________
By:______________________
Name:________________
Title:_______________
Exhibit B
EXHIBIT C-1
REVOLVING NOTE
Date
___________________, a __________________ corporation (collectively,
the "Borrowers"), jointly and severally, promise to pay to the order of
____________________________________ (the "Lender") the aggregate unpaid
principal amount of all Revolving Loans made by the Lender to the Borrowers
pursuant to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, NA, as Agent, together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. The Borrowers shall pay the principal of and accrued and
unpaid interest on the Revolving Loans and Reimbursement Obligations in full on
the Facility Termination Date
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement dated as of December 4, 2003 (which, as it
may be amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrowers, the other Loan Parties, the lenders party
thereto, including the Lender, the LC Issuer and Bank One, NA, s Agent, to which
Agreement reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this Note
may be prepaid or its maturity date accelerated. This Note is secured pursuant
to the Collateral Documents and guaranteed pursuant to the Guaranty, as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
THE BORROWERS HEREBY AUTHORIZE ANY ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF
RECORD IN ANY COUNTY IN THE STATE OF OHIO OR ELSEWHERE WHERE THE BORROWERS HAVE
A PLACE OF BUSINESS, SIGNED THIS NOTE OR CAN BE FOUND, AFTER THE AGENT OR
REQUIRED LENDERS DECLARE A DEFAULT AND ACCELERATE THE BALANCES DUE UNDER THIS
AGREEMENT, TO WAIVE THE ISSUANCE OF SERVICE OF PROCESS AND CONFESS JUDGMENT
AGAINST THE BORROWERS IN FAVOR OF THE AGENT AND LENDERS FOR THE AMOUNTS THEN
APPEARING DUE, TOGETHER WITH THE COSTS OF SUIT, AND THEREUPON TO RELEASE ALL
ERRORS AND WAIVE ALL RIGHT OF APPEAL AND STAY OF EXECUTION. THE BORROWERS AGREE
AND CONSENTS THAT THE ATTORNEY CONFESSING JUDGMENT ON BEHALF OF THE BORROWERS
HEREUNDER MAY ALSO BE COUNSEL TO THE AGENT, LENDERS OR ANY OF THEIR AFFILIATES,
WAIVES ANY CONFLICT OF INTEREST WHICH MIGHT OTHERWISE ARISE, AND CONSENTS TO THE
AGENT OR LENDERS PAYING SUCH CONFESSING ATTORNEY A LEGAL FEE OR ALLOWING SUCH
ATTORNEY'S FEES TO BE PAID FROM ANY PROCEEDS OF COLLECTION OF AGREEMENT OR
COLLATERAL SECURITY THEREFOR.
Exhibit C-1
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
[DOMESTIC BORROWERS]
By:_________________________________
Print Name:_________________________
Title:______________________________
Exhibit C-1
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF___________________ ,
DATED________________ ,
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
-----------------------------------------------------------------
Exhibit C-1
EXHIBIT C-2
SINGAPORE REVOLVING NOTE
Date
[_________ ] (the "Singapore Borrower"), promises to pay to the order
of ________________ (the "Lender") the aggregate unpaid principal amount of all
Singapore Revolving Loans made by the Lender to the Singapore Borrower pursuant
to Article II of the Agreement (as hereinafter defined), in immediately
available funds at [name and branch of Singapore Bank] together with interest on
the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement. The Singapore Borrower shall pay the principal of and accrued and
unpaid interest on the Singapore Revolving Loans and Reimbursement Obligations
in full on the Facility Termination Date
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement dated as of December 4, 2003 (which, as
amended, and as it may be further amended or modified and in effect from time to
time, is herein called the "Agreement"), among the Borrowers, the other Loan
Parties, the lenders party thereto, including the Lender, the LC Issuer and Bank
One, NA, as the Agent, to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including the terms
and conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is secured pursuant to the Collateral Documents and
guaranteed pursuant to the Guaranty, as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and
provisions thereof. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
SINGAPORE BORROWER
By:_________________________________
Print Name:_________________________
Title:______________________________
Exhibit C-2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF__________________ ,
DATED_________ , ______
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
-----------------------------------------------------------------
Exhibit C-2
EXHIBIT C-3
TERM A NOTE
Date
___________________, a __________________ (collectively, the
"Borrowers"), jointly and severally, promise to pay to the order of
____________________________________ (the "Lender") the aggregate unpaid
principal amount of all Term A Loans made by the Lender to the Borrowers
pursuant to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, NA, as Agent, together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. The Borrowers shall pay the principal of and accrued and
unpaid interest on the Term A Loans in full on the Facility Termination Date and
shall make such mandatory prepayments as are required to be made under the terms
of Article II of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement dated as of December 4, 2003 (which, as it
may be amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrowers, the other Loan Parties, the lenders party
thereto, including the Lender, the LC Issuer and Bank One, NA, as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty, as
more specifically described in the Agreement, and reference is made thereto for
a statement of the terms and provisions thereof. Capitalized terms used herein
and not otherwise defined herein are used with the meanings attributed to them
in the Agreement.
THE BORROWERS HEREBY AUTHORIZE ANY ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF
RECORD IN ANY COUNTY IN THE STATE OF OHIO OR ELSEWHERE WHERE THE BORROWERS HAVE
A PLACE OF BUSINESS, SIGNED THIS NOTE OR CAN BE FOUND, AFTER THE AGENT OR
REQUIRED LENDERS DECLARE A DEFAULT AND ACCELERATE THE BALANCES DUE UNDER THIS
AGREEMENT, TO WAIVE THE ISSUANCE OF SERVICE OF PROCESS AND CONFESS JUDGMENT
AGAINST THE BORROWERS IN FAVOR OF THE AGENT AND LENDERS FOR THE AMOUNTS THEN
APPEARING DUE, TOGETHER WITH THE COSTS OF SUIT, AND THEREUPON TO RELEASE ALL
ERRORS AND WAIVE ALL RIGHT OF APPEAL AND STAY OF EXECUTION. THE BORROWERS AGREE
AND CONSENTS THAT THE ATTORNEY CONFESSING JUDGMENT ON BEHALF OF THE BORROWERS
HEREUNDER MAY ALSO BE COUNSEL TO THE AGENT, LENDERS OR ANY OF THEIR AFFILIATES,
WAIVES ANY CONFLICT OF INTEREST WHICH MIGHT OTHERWISE ARISE, AND CONSENTS TO THE
AGENT OR LENDERS PAYING SUCH CONFESSING ATTORNEY A LEGAL FEE OR ALLOWING SUCH
ATTORNEY'S FEES TO BE PAID FROM ANY PROCEEDS OF COLLECTION OF AGREEMENT OR
COLLATERAL SECURITY THEREFOR.
Exhibit C-3
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
[DOMESTIC BORROWERS]
By:_________________________________
Print Name:_________________________
Title:______________________________
Exhibit X-0
XXXXXXX X-0
XXXX X NOTE
Date
___________________, a __________________ corporation (collectively,
the "Borrowers"), jointly and severally, promises to pay to the order of
____________________________________ (the "Lender") the aggregate unpaid
principal amount of all Term B Loans made by the Lender to the Borrowers
pursuant to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, NA, as Agent, together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. The Borrower shall pay the principal of and accrued and
unpaid interest on the Term B Loans in full on the Facility Termination Date and
shall make such mandatory prepayments as are required to be made under the terms
of Article II of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement dated as of December 4, 2003 (which, as it
may be amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrowers, the other Loan Parties, the lenders party
thereto, including the Lender, the LC Issuer and Bank One, NA, as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Collateral Documents and guaranteed pursuant to the Guaranty, as
more specifically described in the Agreement, and reference is made thereto for
a statement of the terms and provisions thereof. Capitalized terms used herein
and not otherwise defined herein are used with the meanings attributed to them
in the Agreement.
THE BORROWERS HEREBY AUTHORIZE ANY ATTORNEY-AT-LAW TO APPEAR IN ANY COURT OF
RECORD IN ANY COUNTY IN THE STATE OF OHIO OR ELSEWHERE WHERE THE BORROWERS HAVE
A PLACE OF BUSINESS, SIGNED THIS NOTE OR CAN BE FOUND, AFTER THE AGENT OR
REQUIRED LENDERS DECLARE A DEFAULT AND ACCELERATE THE BALANCES DUE UNDER THIS
AGREEMENT, TO WAIVE THE ISSUANCE OF SERVICE OF PROCESS AND CONFESS JUDGMENT
AGAINST THE BORROWERS IN FAVOR OF THE AGENT AND LENDERS FOR THE AMOUNTS THEN
APPEARING DUE, TOGETHER WITH THE COSTS OF SUIT, AND THEREUPON TO RELEASE ALL
ERRORS AND WAIVE ALL RIGHT OF APPEAL AND STAY OF EXECUTION. THE BORROWERS AGREE
AND CONSENTS THAT THE ATTORNEY CONFESSING JUDGMENT ON BEHALF OF THE BORROWERS
HEREUNDER MAY ALSO BE COUNSEL TO THE AGENT, LENDERS OR ANY OF THEIR AFFILIATES,
WAIVES ANY CONFLICT OF INTEREST WHICH MIGHT OTHERWISE ARISE, AND CONSENTS TO THE
AGENT OR LENDERS PAYING SUCH CONFESSING ATTORNEY A LEGAL FEE OR ALLOWING SUCH
ATTORNEY'S FEES TO BE PAID FROM ANY PROCEEDS OF COLLECTION OF AGREEMENT OR
COLLATERAL SECURITY THEREFOR.
Exhibit C-4
WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
[DOMESTIC BORROWERS]
By:_________________________________
Print Name:_________________________
Title:______________________________
Exhibit C-4
EXHIBIT D
FORM OF OPINION
SEE ATTACHED.
Exhibit D
EXHIBIT E
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of December 4, 2003 (as amended, modified, renewed or
extended from time to time, the "Agreement") among the Borrowers, the other Loan
Parties, the Lenders party thereto and Bank One, NA, as Agent for the Lenders
and as an LC Issuer. Unless otherwise defined herein, capitalized terms used in
this Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected us of __________ the Company;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrowers and their Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below;
4. I hereby certify that no Loan Party has changed (i) its name,
(ii) its chief executive office, (iii) principal place of business, (iv) the
type of entity it is or (v) its state of incorporation or organization without
having given the Agent the notice required by Section 6.22;
5. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrowers' compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct;
6. Schedule II hereto sets forth the determination of the interest
rates to be paid for Credit Extensions and the commitment fee rates commencing
on the fifth day following the delivery hereof; and
7. Schedule III attached hereto sets forth the various reports and
deliveries which are required at this time under the Credit Agreement and the
other Loan Documents and the status of compliance.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrowers have taken, are taking, or propose to
take with respect to each such condition or event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Exhibit E
The foregoing certifications, together with the computations and
information set forth in Schedule I, Schedule II and Schedule III hereto and the
financial statements delivered with this Certificate in support hereof, are made
and delivered this ____ day of _____ , ______.
[COMPANY]
By:_____________________
Name:___________________
Title:__________________
Exhibit E
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of 6.28 and 6.29
of the Agreement
Exhibit E
SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrowers' Applicable Margin Calculation
Exhibit E
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
Exhibit E
EXHIBIT F
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement"), dated as of __________,
____, 200_, is entered into between ________________________________, a
_________________ (the "New Subsidiary") and BANK ONE, NA, in its capacity as
administrative agent (the "Agent") under that certain Credit Agreement, dated as
of December 4, 2003 among the Borrowers, the Loan Parties party thereto, the
Lenders party thereto and the Agent (as the same may be amended, modified,
extended or restated from time to time, the "Credit Agreement"). All capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Credit Agreement.
The New Subsidiary and the Agent, for the benefit of the Lenders,
hereby agree as follows:
1. The New Subsidiary hereby acknowledges, agrees and confirms that, by
its execution of this Agreement, the New Subsidiary will be deemed to be a Loan
Party under the Credit Agreement and a "Guarantor" for all purposes of the
Credit Agreement and shall have all of the obligations of a Loan Party and a
Guarantor thereunder as if it had executed the Credit Agreement. The New
Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by,
all of the terms, provisions and conditions contained in the Credit Agreement,
including without limitation (a) all of the representations and warranties of
the Loan Parties set forth in Article V of the Credit Agreement, and (b) all of
the covenants set forth in Article VI of the Credit Agreement and (c) all of the
guaranty obligations set forth in Article XV of the Credit Agreement. Without
limiting the generality of the foregoing terms of this paragraph 1, the New
Subsidiary, subject to the limitations set forth in Section 15.10 of the Credit
Agreement, hereby guarantees, jointly and severally with the other Guarantors,
to the Agent and the Lenders, as provided in Article XV of the Credit Agreement,
the prompt payment and performance of the Guaranteed Obligations in full when
due (whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise) strictly in accordance with the terms thereof and agrees that if any
of the Guaranteed Obligations are not paid or performed in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration or
otherwise), the New Subsidiary will, jointly and severally together with the
other Guarantors, promptly pay and perform the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
2. If required, the New Subsidiary is, simultaneously with the
execution of this Agreement, executing and delivering such Collateral Documents
(and such other documents and instruments) as requested by the Agent in
accordance with the Credit Agreement.
3. The address of the New Subsidiary for purposes of Article XIII
of the Credit Agreement is as follows:
__________________________
__________________________
__________________________
__________________________
4. The New Subsidiary hereby waives acceptance by the Agent and
the Lenders of the guaranty by the New Subsidiary upon the execution of this
Agreement by the New Subsidiary.
5. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument.
Exhibit F
6. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF OHIO.
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be
duly executed by its authorized officer, and the Agent, for the benefit of the
Lenders, has caused the same to be accepted by its authorized officer, as of the
day and year first above written.
[NEW SUBSIDIARY]
By:____________________________________
Name:__________________________________
Title:_________________________________
Acknowledged and accepted:
BANK ONE, NA, as Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
Exhibit F
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between *[Insert name of Assignor]* (the "Assignor") and *[Insert name of
Assignee]* (the "Assignee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the Credit Agreement identified below (as
amended, the "Credit Agreement"), receipt of a copy of which is hereby
acknowledged by the Assignee. The Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Agent as contemplated below, the interest in and to all of the Assignor's
rights and obligations in its capacity as a Lender under the Credit Agreement
and any other documents or instruments delivered pursuant thereto that
represents the amount and percentage interest identified below of all of the
Assignor's outstanding rights and obligations under the respective facilities
identified below (including without limitation any letters of credit, guaranties
and swingline loans included in such facilities and, to the extent permitted to
be assigned under applicable law, all claims (including without limitation
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity), suits, causes of action and any other right of the
Assignor against any Person whether known or unknown arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________[and is an Affiliate/Approved
Fund of identify Lender]
3. Borrower(s): _______________________________
4. Agent: Bank One, NA, as the agent under the Credit Agreement.
5. Credit Agreement: The $105,000,000 Credit Agreement dated as of December
4, 2003 among the Borrowers, the other Loan Parties, the Lenders party thereto,
Bank One, NA, as Agent, and the other agents party thereto.
Exhibit G
6. Assigned Interest:
Aggregate Amount of Amount of
Commitment/ Credit Commitment/ Credit Percentage Assigned of
Exposure for all Exposure Assigned(4) Commitment/ Credit
Facility Assigned Lenders(3) Exposure(5)
--------------------- ------------------ ------------------- ------------------------
Revolving Commitment(6) $ $ _______%
Term Loan A Commitment $ $ _______%
Term Loan B Commitment $ $ _______%
7. Trade Date: __________________________(7)
Effective Date: ____________________, 20__ [TO BE INSERTED BY AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-------------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
[Consented to and](8) Accepted:
Bank One, NA, as Agent and LC Issuer
By:
-----------------------------------------
Title:
--------
(3) AMOUNT TO BE ADJUSTED BY THE COUNTERPARTIES TO TAKE INTO ACCOUNT ANY
PAYMENTS OR PREPAYMENTS MADE BETWEEN THE TRADE DATE AND THE EFFECTIVE DATE.
(4) AMOUNT TO BE ADJUSTED BY THE COUNTERPARTIES TO TAKE INTO ACCOUNT ANY
PAYMENTS OR PREPAYMENTS MADE BETWEEN THE TRADE DATE AND THE EFFECTIVE DATE.
(5) SET FORTH, TO AT LEAST 9 DECIMALS, AS A PERCENTAGE OF THE COMMITMENT/LOANS
OF ALL LENDERS THEREUNDER.
(6) FILL IN THE APPROPRIATE TERMINOLOGY FOR THE TYPES OF FACILITIES UNDER THE
CREDIT AGREEMENT THAT ARE BEING ASSIGNED UNDER THIS ASSIGNMENT (E.G. "REVOLVING
CREDIT COMMITMENT," "TERM LOAN COMMITMENT,", ETC.)
(7) INSERT IF SATISFACTION OF MINIMUM AMOUNTS IS TO BE DETERMINED AS OF THE
TRADE DATE.
(8) TO BE ADDED ONLY IF THE CONSENT OF THE AGENT IS REQUIRED BY THE TERMS OF THE
CREDIT AGREEMENT.
Exhibit G
[Consented to:](8)
[BORROWER]
By:
--------------------------------------------------
Title:
[NAME OF OTHER RELEVANT PARTY]
By:
--------------------------------------------------
Title:
-----------
(9) TO BE ADDED ONLY IF THE CONSENT OF THE BORROWER AND/OR OTHER PARTIES (E.G.
SWINGLINE LENDER, L/C ISSUER) IS REQUIRED BY THE TERMS OF THE CREDIT AGREEMENT.
Exhibit G
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor represents and warrants that (i) it
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency, perfection, priority,
collectibility, or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of the Borrowers, any of their Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document, (iv)
the performance or observance by the Borrowers, any of their Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document, (v) inspecting any of the property, books or records of the
Borrowers, or any guarantor, or (vi) any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan Documents.
1.2. Assignee. The Assignee (a) represents and warrants that
(i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iii)
agrees that its payment instructions and notice instructions are as set forth in
Schedule 1 to this Assignment and Assumption, (iv) confirms that none of the
funds, monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be "plan
assets" under ERISA, (v) agrees to indemnify and hold the Assignor harmless
against all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's non-performance of
the obligations assumed under this Assignment and Assumption, (vi) it has
received a copy of the Credit Agreement, together with copies of financial
statements and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the Agent
or any other Lender, and (vii) attached as Schedule 1 to this Assignment and
Assumption is any documentation required to be delivered by the Assignee with
respect to its tax status pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee and (b) agrees that (i) it will,
independently and without reliance on the Agent, the Assignor 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 the Loan Documents, and (ii) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
2. Payments. The Assignee shall pay the Assignor, on the
Effective Date, the amount agreed to by the Assignor and the Assignee. From and
after the Effective Date, the Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after
the Effective Date.
Exhibit G
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of Ohio.
Exhibit G
EXHIBIT H
BORROWING BASE CERTIFICATE
BORROWING BASE REPORT
Rpt #
Obligor Number: Date:
Loan Number: Period Covered:___________ to___________
COLLATERAL CATEGORY A/R INVENTORY TOTAL
------------------------------------------------------- --- --------- -------------------------
DESCRIPTION
1 Beginning Balance (Previous report - Line 8)
2 Additions to Collateral (Gross Sales or Purchases)
3 Other Additions (Add back any non-A/R cash in line 3
4 Deductions to Collateral (Cash Received)
5 Deductions to Collateral (Discounts, other)
6 Deductions to Collateral (Credit Memos, all)
7 Other NON-CASH credits to A/R
8 TOTAL ENDING COLLATERAL BALANCE
9 Less Ineligible - Past Due
10 Less Ineligible - Cross-age (___%)
11 Less Ineligible - Foreign
12 Less Ineligible - Contra
13 Less Ineligible - Other (attached schedule)
14 TOTAL INELIGIBLES - ACCOUNTS RECEIVABLE
15 Less Ineligible -- Inventory Slow-moving
16 Less Ineligible -- Inventory Offsite not covered
17 Less Ineligible -- Inventory WIP
18 Less Ineligible -- Consigned
19 Less Ineligible -- Other (attached schedule)
20 TOTAL INELIGIBLES INVENTORY
21 TOTAL ELIGIBLE COLLATERAL
22 Advance Rate Percentage
23 NET AVAILABLE - BORROWING BASE VALUE
24 Reserves (Letters of Credit, Other)
25 TOTAL BORROWING BASE VALUE
26 CAPS/LOAN LIMITS TOTAL CAPS/LOAN LINE
27 MAXIMUM BORROWING LIMIT (LESSER OF 25. OR 26.) TOTAL AVAILABLE
LOAN STATUS
28 Previous Loan Balance (Previous Report Line 31)
29 Less: A. Net Collections (Same as line 4)
B. Adjustments/Other _______________
30 Add: A. Request for Funds
B. Adjustments/Other _______________
31 New Loan Balance
32 AVAILABILITY NOT BORROWED (LINES 27 LESS 31)
33 TERM LOAN Total New Loan Balance:
34 OVERALL EXPOSURE (LINES 31 & 33)
Pursuant to, and in accordance with, the terms and provisions of that certain
Credit Agreement ("Agreement"), among Bank One, NA, as agent for the Lenders,
the Lenders, the Borrowers, and the Loan Parties, the Company is executing and
delivering to Agent this Collateral Report accompanied by supporting data
(collectively referred to as the "Report"). The Company represents and warrants
to Agent that this Report is true and correct, and is based on information
contained in the Company's own financial accounting records. The Company, by the
execution of this Report, hereby ratifies, confirms and affirms all of the
terms, conditions and provisions of the Agreement, and further certifies on this
________ day of _______________, 20__, that the Borrowers are in compliance with
said Agreement.
BORROWER NAME: AUTHORIZED SIGNATURE:
Exhibit H
