EXHIBIT 4.1
FIRST MODIFICATION TO CREDIT AGREEMENT
This First Modification to Credit Agreement (this "Agreement") is made
effective as of the 1st day of March, 2000, by and among BACOU USA, INC., a
Delaware corporation ("Borrower"), UVEX SAFETY MANUFACTURING, INC., a Delaware
corporation ("Uvex"; together with the Borrower, hereinafter collectively
referred to as "Obligors"; and each of the Obligors is sometimes individually
referred to as an "Obligor"), FLEET NATIONAL BANK, f/k/a BANKBOSTON, N.A., a
national banking association organized and existing under the laws of the United
States of America, having an office at 00 Xxxxx Xxxxxx xx Xxxxxx, Xxxxxxxxxxxxx
("Fleet"), KEYBANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America having an
office at Xxx Xxxxx Xxxxx, Xxxxxxxx, Xxxxx ("KeyBank"), and Fleet, as agent
("Agent") for itself and KeyBank (Fleet and KeyBank being hereinafter
collectively referred to as the "Banks"), in the following circumstances:
A. The Banks have made certain loans to Borrower on a revolving credit
basis in the maximum aggregate principal amount of $36,000,000 (collectively,
the "Loans"). The Loans are governed, in part, by the Credit Agreement dated as
of August 24, 1999 by and among Obligors, Fleet, KeyBank, and Agent (the "Credit
Agreement"), and are evidenced by (i) a Revolving Credit Note dated August 24,
1999 made by Borrower in favor of Fleet in the original principal amount of
$22,364,000, and (ii) a Revolving Credit Note dated August 24, 1999 made by
Borrower in favor of KeyBank in the original principal amount of $13,636,000,
(collectively, the "Notes"; the Credit Agreement, the Notes and all documents
executed in connection therewith are sometimes hereinafter collectively referred
to as the "Loan Documents").
B. The Xxxxxx County Industrial Facilities and Pollution Control
Financing Authority (the "Issuer") has agreed with Schas Industries, LLC
("Schas"), a subsidiary of Borrower, to reissue its $5,590,000 1997 Industrial
Development Revenue Bonds, Series A (Schas Industries, LLC Project) (the
"Bonds") pursuant to a certain Master Indenture dated as of December 1, 1997 by
and between the Issuer and The Bank of New York, as Trustee (the "Trustee"), as
amended by the First Supplement to Master Indenture dated as of March 1, 2000 by
and between the Issuer and the Trustee (as amended, the "Master Indenture"), and
a certain Series Supplemental Indenture dated as of December 1, 1997 by and
between the Issuer and the Trustee, as amended by the First Supplement to Series
Supplemental Indenture dated as of March 1, 2000 by and between the Issuer and
the Trustee (as amended, the "Series Supplemental Indenture"; together with the
Master Indenture, hereinafter collectively referred to as the "Indenture
Documents").
C. In connection with the reissuance of the Bonds, the Borrower has
requested that the Agent issue its irrevocable, transferable, direct-pay letter
of credit in favor of the Trustee for the account of Schas, in the amount of
$5,681,900 (the "Schas Letter of Credit"), pursuant to the terms of a
Reimbursement Agreement dated as of March 1, 2000, between Borrower, Schas and
Agent (the "Schas Reimbursement Agreement").
D. Agent has agreed to issue the Schas Letter of Credit, but only if
the Credit Agreement is modified upon the terms and conditions set forth herein.
Any capitalized terms used but not defined herein shall be given the same
meaning given to such terms as set forth in the Credit Agreement.
NOW, THEREFORE, in consideration of Agent's and Banks' agreements set
forth herein and in further consideration of Obligors' agreements to perform all
of their obligations set forth herein and in the Loan Documents, the parties
hereby agree as follows:
1. The Credit Agreement is hereby amended, from and after the
effective date hereof, as follows:
1.1 Schedule 5.19 of the Credit Agreement is hereby deleted in its
entirety, and Schedule 5.19 attached hereto and incorporated herein is
substituted therefor and inserted in place thereof.
1.2 Schedule 7.1.3 of the Credit Agreement is hereby deleted in its
entirety, and Schedule 7.1.3 attached hereto and incorporated herein is
substituted therefor and inserted in place thereof.
1.3 Section 10.1 of the Credit Agreement is hereby amended to add "or"
at the end of Section 10.1.11 and to add the following new Section 10.1.12
immediately following Section 10.1.11:
"10.1.12 an event of default occurs under any Reimbursement Agreement
and such event of default continues uncured beyond the expiration of
any applicable grace or notice period;"
1.4 The definition of Letter of Credit set forth in Section 1.1 is
hereby deleted and the following is substituted therefor and inserted in place
thereof:
"Letter of Credit. The irrevocable, transferable, direct-pay letter of
credit in the amount of $5,681,900 issued by Agent for the account of
Schas pursuant to the terms of the Reimbursement Agreement dated as of
March 1, 2000, by and among Borrower, Schas and Agent, or a commercial
standby or trade letter of credit issued by the Agent or any of the
Banks for the account of the Borrower or any of its Subsidiaries."
1.5 The definition of Reimbursement Agreement set forth in Section 1.1
is hereby deleted and the following is substituted therefor and inserted in
place thereof:
"Reimbursement Agreement. The Reimbursement Agreement dated as of
March 1, 2000, by and among Borrower, Schas and Agent, or any other
reimbursement agreement between Borrower and Agent (and/or Agent and
the Banks) providing for the reimbursement of any Draws honored under
a Letter of Credit."
1.6 The definition of Loan Documents set forth in Section 1.1 is
hereby deleted and the following is substituted therefor and inserted in place
thereof:
"Loan Documents. This Credit Agreement, the Notes, the Letter of
Credit Documents and all other instruments related to the Loans or the
Bond executed in connection therewith."
1.7 The following new definitions shall be added to Section 1.1:
"Schas. Schas Industries, LLC, a Delaware limited liability company."
2. On and after the date hereof, all references to the Credit
Agreement, whether made in this Agreement, the Loan Documents, the Schas
Reimbursement Agreement or however or whenever made, shall be deemed to refer to
the Credit Agreement as amended by this Agreement. ALL OF THE PROVISIONS OF THE
CREDIT AGREEMENT, AS AMENDED HEREBY, REMAIN IN FULL FORCE AND EFFECT.
3. By its execution of this Agreement, each of the Banks (i) consent
to the issuance of the Schas Letter of Credit by Agent and agree that each of
the Banks shall participate in any Draws under the Schas Letter of Credit in
accordance with its respective Commitment Percentage for Loans, (ii) approve the
form and substance of the Schas Reimbursement Agreement as required by Section
2.1 of the Credit Agreement, and (iii) agree that the annual fee set forth in
Section 2.04(a) of the Schas Reimbursement Agreement shall be allocated prorata
among the Banks in accordance with their respective Commitment Percentage for
Loans and that all other fees paid by Borrower as set forth in said Section 2.04
shall be allocated to and earned solely by the Agent.
4. All demands, notices, and communications hereunder shall be in
writing and shall be deemed to have been duly given when mailed by United States
certified mail, return receipt requested, postage prepaid to the parties at the
addresses set forth in the Credit Agreement.
5. Any part, provision, representation or warranty of this Agreement
which is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. This Agreement shall be construed
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of Rhode Island. This
Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns. This Agreement shall
not be assigned, pledged or hypothecated by Obligors to a third party without
the consent of all parties to this Agreement.
6. The failure of any party to insist upon strict performance of a
covenant hereunder or of any obligation hereunder, irrespective of the length of
time for which such failure continues, shall not be a waiver of such party's
right to demand strict compliance in the future. No consent or waiver, express
or implied, to or of any breach shall constitute a consent or waiver to or of
any other breach or default in the performance of the same or any other
obligation hereunder. No term or provision of this Agreement may be waived
unless such waiver is in writing and signed by the party against whom such
waiver is sought to be enforced.
7. IN THE EVENT THAT AGENT BRINGS ANY ACTION OR PROCEEDING IN
CONNECTION HEREWITH IN ANY COURT OF RECORD OF THE STATE OF RHODE ISLAND OR THE
UNITED STATES IN SUCH STATE, EACH OBLIGOR HEREBY IRREVOCABLY CONSENTS TO AND
CONFERS PERSONAL JURISDICTION OF SUCH COURT OVER SUCH OBLIGOR BY SUCH COURT. IN
ANY SUCH ACTION OR PROCEEDING, EACH OBLIGOR HEREBY WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE
MADE UPON SUCH OBLIGOR BY MAILING A COPY OF SUCH SUMMONS, COMPLAINT OR OTHER
PROCESS BY UNITED STATES CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, TO SUCH OBLIGOR AT THE ADDRESS REFERENCED ABOVE. EACH OBLIGOR HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
EACH OBLIGOR AND AGENT EACH HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY JURY, AND EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS AGREEMENT, THE CREDIT AGREEMENT, OR THE OTHER LOAN DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY SUCH
OBLIGOR AND AGENT, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND
EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. THE
AGENT IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY SUCH OBLIGOR. EXCEPT AS PROHIBITED BY LAW,
EACH OBLIGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH OBLIGOR (A) CERTIFIES THAT NO REPRESENTATIVE OR ATTORNEY OF
AGENT OR BANKS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (B)
ACKNOWLEDGES THAT THE AGENT AND BANKS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Obligors, Banks and Agent have executed this
Agreement by their authorized representatives as of the date first above
written.
Witnessed by: BACOU USA, INC.
By:/s/ Xxxxxx X. Xxxx
---------------------------- -------------------------------
Xxxxxx X. Xxxx
President and Chief
Executive Officer
UVEX SAFETY MANUFACTURING, INC.
By:/s/ Xxxxxx X. Xxxx
---------------------------- -------------------------------
Xxxxxx X. Xxxx
Chairman
FLEET NATIONAL BANK, as Agent
By:/s/ Xxxx X. Xxxxx
---------------------------- -------------------------------
Xxxx X. Xxxxx
Senior Vice President
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxx
---------------------------- ------------------------------
Xxxx X. Xxxxx
Senior Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
Schedule 5.19
Existing Indebtedness of Obligors
1. The obligations of SCHAS Industries, LLC f/k/a Schas Circular Industries,
Inc. in connection with The Xxxxxx County Industrial Facilities and Pollution
Control Financing Authority 1997 Industrial Development Revenue Bonds, Series A
(Schas Industries, LLC Project) evidenced by the $5,590,000 Promissory Note
dated March 1, 2000 made by SCHAS Industries, LLC in favor of The Xxxxxx County
Industrial Facilities and Pollution Control Financing Authority.
2. Irrevocable Letter of Credit dated December 22, 1997 issued by Marine Midland
Bank in favor of The Bank of New York for the account of SCHAS Industries, Inc.
f/k/a Schas Circular Industries, Inc. in an aggregate principal amount of
$6,585,000. [to be replaced and terminated by Letter of Credit issued by Lender
at closing of First Modification.]
3. Loans by BNP to Borrower on a revolving credit basis in the maximum aggregate
principal amount of $110,000,000, evidenced by the Credit Line Agreement dated
February 19, 1998.
4. Loans by BNP to Borrower on a revolving credit basis in the maximum aggregate
principal amount of $50,000,000, evidenced by the Credit Line Agreement dated
March 25, 1999.
Schedule 7.1.3
Permitted Debt
1. The obligations of SCHAS Industries, LLC f/k/a Schas Circular Industries,
Inc. in connection with the Xxxxxx County Industrial Facilities and Pollution
Control Financing Authority 1997 Industrial Development Revenue Bonds, Series A
(Schas Industries, LLC Project) evidenced by the $5,590,000 Promissory Note
dated March 1, 2000 made by SCHAS Industries, LLC in favor of Xxxxxx County
Industrial Facilities and Pollution Control Financing Authority.
2. Irrevocable Letter of Credit dated December 22, 1997 issued by Marine Midland
Bank in favor of The Bank of New York for the account of SCHAS Industries, Inc.
f/k/a Schas Circular Industries, Inc. in an aggregate principal amount of
$6,585,000. [to be replaced and terminated by Letter of Credit issued by Lender
at closing of First Modification.]
3. Loans by BNP to Borrower on a revolving credit basis in the maximum aggregate
principal amount of $110,000,000, evidenced by the Credit Line Agreement dated
February 19, 1998.
4. Loans by BNP to Borrower on a revolving credit basis in the maximum aggregate
principal amount of $50,000,000, evidenced by the Credit Line Agreement dated
March 25, 1999.
EXHIBIT 4.2
PLEDGE AGREEMENT
This PLEDGE AGREEMENT ("this Agreement") is made as of the 1st day of
March, 2000, by and between BACOU USA, INC., a Delaware corporation ("Bacou"),
SCHAS INDUSTRIES, LLC, a Delaware limited liability company ("Schas"; together
with Bacou hereinafter individually referred to as "Pledgor" and collectively
referred to as "Pledgors") and FLEET NATIONAL BANK, a national banking
association, organized and existing under the laws of the United States of
America, having an office at 00 Xxxxx Xxxxxx xx Xxxxxx, Xxxxxxxxxxxxx, as agent
(the "Agent") for the benefit of the financial institutions which are or which
become Banks under, and as described in, the Credit Agreement dated as of August
24, 1999 by and among Bacou, Uvex Safety Manufacturing, Inc., Fleet National
Bank f/k/a BankBoston, N.A., Keybank National Association and Agent (the "Credit
Agreement").
PRELIMINARY STATEMENTS:
X. Xxxxxx County Industrial Facilities and Pollution Control Financing
Authority (the "Issuer") has agreed with Schas to reissue its $5,590,000 1997
Industrial Development Revenue Bonds, Series A (Schas Industries, LLC Project)
(the "Bonds") pursuant to a certain Master Indenture dated as of December 1,
1997 by and between the Issuer and The Bank of New York, as Trustee (the
"Trustee"), as amended by the First Supplement to Master Indenture dated as of
March 1, 2000 by and between the Issuer and the Trustee (as amended, the "Master
Indenture"), and a certain Series Supplemental Indenture dated as of December 1,
1997 by and between the Issuer and the Trustee, as amended by the First
Supplement to Series Supplemental Indenture dated as of March 1, 2000 by and
between the Issuer and the Trustee (as amended, the "Series Supplemental
Indenture"; together with the Master Indenture, hereinafter collectively
referred to as the "Indenture Documents").
B. The Agent has agreed to issue its irrevocable, transferable,
direct-pay letter of credit (the "Letter of Credit") in favor of the Trustee,
pursuant to the terms of a Reimbursement Agreement dated as of March 1, 2000,
between Pledgors and Agent (the "Reimbursement Agreement"). Any capitalized
terms used but not defined herein shall be given the same meaning given to such
terms in the Reimbursement Agreement.
C. In connection with the issuance of the Bonds, the Pledgors have
agreed to enter into the Reimbursement Agreement in order to induce the Agent to
issue the Letter of Credit thereunder, which Letter of Credit may be used, inter
alia, to pay the Purchase Price of Bonds which are not successfully remarketed
in the event that a Bondholder (as defined in the Indenture Documents) elects to
tender any Bonds or in the event that such Bonds are subject to mandatory tender
(any Bonds so purchased, the "Pledged Bonds").
D. It is a condition precedent to the obligation of the Agent to issue
its Letter of Credit that the Pledgors shall have entered into this Agreement
with the Agent.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Agent to issue the Letter of Credit pursuant to the Reimbursement
Agreement, and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. PLEDGE. The Pledgors hereby pledge to the Agent, and grant
to the Agent a security interest in, all of their respective title and interest
in and to the Pledged Bonds and the certificates representing the Pledged Bonds,
as the same may be from time to time delivered to the Trustee or the Remarketing
Agent by the holder thereof, and any interest of the Pledgors in the entries on
the books of any financial intermediary pertaining to the Pledged Bonds, and all
interest, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Bonds (the "Pledged Collateral").
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement and the pledge and
security interest granted by the Pledgors to the Agent hereunder secures the
payment and performance of all obligations of the Pledgors now or hereafter
existing under the Reimbursement Agreement and/or the Related Documents,
including, without limitation, with respect to any Letter of Credit Payments
that have been made under the Reimbursement Agreement and Letter of Credit,
whether such obligations are for principal, interest, fees, expenses or
otherwise, and all obligations of the Pledgors now or hereafter existing under
this Agreement (all such obligations of the Pledgors being, collectively, the
"Obligations").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. In connection with any draw
on the Letter of Credit pursuant to an A-Drawing, as defined in the Letter of
Credit, Pledged Bonds in an aggregate principal amount equal to the principal
amount represented by such draw shall be delivered by the Trustee or the
Remarketing Agent to the Agent (and if in book-entry form the appropriate
entries will be made on the books of a financial intermediary showing the
interest of the Agent) pursuant to the Indenture Documents as promptly as
practicable, and in any event within three (3) Business Days after such
presentation. Pledged Bonds shall be registered in the name of the Agent or its
designee as pledgee, and all certificates or instruments representing or
evidencing the Pledged Collateral shall be delivered to and held by the Agent
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to the Agent. In addition, the Agent
shall have the right, to the extent permitted under the Indenture Documents, at
any time to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
authorized denominations. Pledged Bonds held by or on behalf of the Agent shall
not be entitled to the benefits of, and shall not be presented for payment
under, the Letter of Credit.
SECTION 4. RELEASE OF PLEDGED BONDS AND PLEDGED COLLATERAL. The
Pledgors hereby agree that the Agent shall not release any of the Pledged Bonds
or the Pledged Collateral until (i) the Agent has been reimbursed in full
pursuant to Article IV of the Reimbursement Agreement for any Demand Loans, as
defined in the Reimbursement Agreement (including interest thereon), made to the
Pledgors as a result of a drawing or drawings under the Letter of Credit to
purchase such Pledged Bonds and (ii) the amount available to be drawn under the
Letter of Credit (if the Letter of Credit is then in effect) has been reinstated
with respect to the Pledged Bonds to be so released.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Pledgors represent and
warrant that:
(a) The Pledgors are and will be the beneficial owners of the Pledged
Collateral free and clear of any lien, security interest, option or other charge
or encumbrance except for the security interest in favor of the Agent created by
this Agreement; and on the date of delivery to the Agent of Pledged Bonds
described herein, neither the Trustee, the Remarketing Agent, nor any other
Person will, in its capacity as Trustee, Remarketing Agent, or otherwise, as the
case may be, have any right, title or interest in or to the Pledged Bonds.
(b) The Pledgors have, and on the date of delivery or transfer to the
Agent of the Pledged Bonds will have, full power and authority to pledge all of
their right, title and interest in and to the Pledged Bonds pursuant to this
Agreement.
(c) Upon the delivery or transfer of the Pledged Bonds to the Agent
(or notice to the appropriate financial intermediaries in the case of book-entry
securities), the pledge of the Pledged Bonds pursuant to this Agreement will
create a valid and perfected first priority security interest in the Pledged
Collateral, securing the payment of the Obligations, subject to no prior pledge,
lien, mortgage, hypothecation, security interest, charge, option or encumbrance
nor to any agreement purporting to grant to any third party a security interest
in the property or assets of the Pledgors that would include the Pledged Bonds.
(d) This Agreement has been duty authorized, executed and delivered by
the Pledgors and constitutes the legal, valid and binding obligation of the
Pledgors enforceable in accordance with its terms, and the pledge of the Bonds
pursuant to this Agreement does not and will not extinguish the debt evidenced
by such Bonds.
(e) No authorization, approval or other action by, and no notice to or
filing with, any governmental body or agency is required either (i) for the
pledge by the Pledgors of the Pledged Collateral pursuant to this Agreement, or
(ii) for the execution, delivery or performance of this Agreement by the
Pledgors.
(f) The execution, delivery and performance of this Agreement will not
violate any applicable provision of law or regulations or the charter or by-laws
of the Pledgors or any provision of any mortgage, indenture, lease, contract or
agreement to which either Pledgor is a party or which is binding upon either
Pledgor or upon its property.
SECTION 6. AFFIRMATIVE COVENANTS. So long as a drawing is available
under the Letter of Credit or any Demand Loans shall remain outstanding, the
Pledgors covenant and agree that, unless the Agent shall otherwise consent in
writing:
(a) The Pledgors will own all of the Pledged Bonds free and clear of
all liens, claims, encumbrances and security interests of any nature whatsoever,
except for the lien and security interest in favor of the Agent provided for
hereby.
(b) The Pledgors will defend the Agent's position as pledgee of the
Pledged Bonds against the claims and demands of all Persons.
(c) The Pledgors will have like title to and right to pledge any other
property at any time hereafter pledged to the Agent as Pledged Collateral
hereunder and will likewise defend the Agent's right thereto and security
interest therein.
SECTION 7. FURTHER ASSURANCES. The Pledgors agree that at any time and
from time to time, at the expense of the Pledgors, the Pledgors will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Agent may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Agent to exercise and enforce
its rights and remedies hereunder with respect to any Pledged Collateral.
SECTION 8. VOTING RIGHTS, INTEREST; ETC. (a) So long as no Event of
Default or event that, with the giving of notice or passage of time, or both,
could become an Event of Default shall have occurred and be continuing:
(i) The Pledgors shall be entitled to exercise, or refrain from
exercising, any and all voting and other consensual rights pertaining to
the Pledged Collateral or any part thereof for any purpose not inconsistent
with the terms of this Agreement or the Reimbursement Agreement; provided,
however, that the Pledgors shall not exercise or refrain from exercising
any such right if, in the Agent's judgment, such action would have a
material adverse effect on the value of the Pledged Collateral or any part
thereof, and provided further that the Pledgors shall give the Agent at
least five days' written notice of the manner in which it intends to
exercise, or the reasons for refraining from exercising, any such right.
(ii) The Pledgors shall be entitled to receive and retain any and all
interest paid in respect of the Pledged Collateral; provided, however, that
any and all
(A) interest paid or payable other than in cash in respect of,
and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral,
and
(B) cash paid, payable or otherwise distributed in respect of
principal of, or in redemption of, or in exchange for, any Pledged
Collateral
shall be, and shall be forthwith delivered to the Agent to be held as, Pledged
Collateral and shall, if received by the Pledgors, be received in trust for the
benefit of the Agent, be segregated from the other property or funds of the
Pledgors, and be forthwith delivered to the Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default or an event that, with the giving of notice or passage of time, or both,
could become an Event of Default:
(i) All rights of the Pledgors to exercise the voting and other
consensual rights that they would otherwise be entitled to exercise
pursuant to Section 8(a)(i) and to receive the interest payments that
they would otherwise be authorized to receive and retain pursuant to
Section 8(a)(ii) shall (upon written notice from the Agent) cease, and
(upon such written notice from the Agent) all such rights shall
thereupon become vested in the Agent, which shall thereupon have the
sole right to exercise such voting and other consensual rights and to
receive and hold as Pledged Collateral such interest payments.
(ii) All interest payments that are received by the Pledgors
contrary to the provisions of paragraph (i) of this Section 8(b) shall
be received in trust for the benefit of the Agent, shall be segregated
from other funds of the Pledgors and shall be forthwith paid over to
the Agent as Pledged Collateral in the same form as so received (with
any necessary endorsement).
SECTION 9. AGENT APPOINTED ATTORNEY-IN-FACT. Each Pledgor hereby
appoints the Agent as such Pledgor's attorney-in-fact, said appointment being
coupled with an interest, with full authority in the place and stead of such
Pledgor, and in the name of such Pledgor or otherwise, from time to time in the
Agent's discretion to take any action and to execute any instrument that the
Agent may deem necessary or advisable to assure that Pledged Bonds are pledged
to the Agent and that the Pledgors' agreements and obligations hereunder are
performed and satisfied, including, without limitation, to receive, endorse and
collect all instruments made payable to the Pledgors representing any interest
payment or other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same.
SECTION 10. AGENT MAY PERFORM. If the Pledgors fail to perform any
agreement contained herein, the Agent, upon notice to the Pledgors, may itself
perform, or cause performance of, such agreement, and the reasonable expenses of
the Agent incurred in connection therewith shall be payable by the Pledgors
under Section 14 hereof.
SECTION 11. REASONABLE CARE. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, it being
understood (without limitation of the foregoing) that the Agent shall not have
any responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not the Agent has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
any parties with respect to any Pledged Collateral.
SECTION 12. SALE OF COLLATERAL. The Pledgors agree to do or cause to
be done all such other acts and things as may be necessary to make any sale or
sales of any portion or all of the Pledged Bonds contemplated by Section 13
hereof valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at the Pledgors' expense.
The Pledgors further agree that a breach of any of the covenants contained in
this Section 12 will cause irreparable injury to the Agent, that the Agent has
no adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in this Section shall be
specifically enforceable against the Pledgors, and the Pledgors each hereby
waive and agree not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred. The Pledgors further acknowledge the impossibility of ascertaining the
amount of damages that would be suffered by the Agent by reason of a breach of
any of such covenants and, consequently, agree that, if the Agent shall xxx for
damages for breach, they shall pay, as liquidated damages and not as a penalty,
against release to them of the Pledged Bonds, an amount equal to the principal
amount of the Pledged Bonds, plus accrued interest on all Demand Loans plus any
other sums then owed under the Reimbursement Agreement, on the date the Agent
shall demand compliance with this Section.
SECTION 13. REMEDIES UPON DEFAULT. If any Event of Default (as defined
in the Reimbursement Agreement) shall have occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
pursuant to it, all the rights and remedies of a secured party on default under
the Uniform Commercial Code (the "UCC") in effect in the State of Rhode Island
at that time, and the Agent may also, without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more parcels at public
or private sale, at any exchange, broker's board or at any of the Agent's
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Agent may deem commercially reasonable. The Pledgors agree
that, to the extent notice of sale shall be required by law, ten days' notice to
the Pledgors of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The
Agent shall not be obligated to make any sale of Pledged Collateral regardless
of notice of sale having been given. The Agent may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to which it
was so adjourned.
(b) Any cash held by the Agent or on its behalf as Pledged Collateral
and all cash proceeds received by the Agent in respect of any sale of,
collection from, or other realization upon all or any part of the Pledged
Collateral may, in the discretion of the Agent, be held by the Agent or on its
behalf as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Agent pursuant to Section 14 hereof) in
whole or in part by the Agent against, all or any part of the Obligations in
such order as the Agent shall elect. Any surplus of such cash or cash proceeds
held by the Agent or on its behalf and remaining after payment and performance
in full of all the Obligations shall be paid over to the Pledgors or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION 14. EXPENSES. The Pledgors will upon demand pay to the Agent
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of the Agent's counsel and of any agents, that the Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of the Agent hereunder, or (iv) the failure by the Pledgors to perform or
observe any of the provisions hereof.
SECTION 15. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Pledgors herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. Neither Pledgors nor
Agent shall by any act, delay, omission or otherwise be deemed to have waived
(except as expressly set forth herein) any of its rights or remedies hereunder
and no waiver shall be valid unless in writing, signed by the other party, and
then only to the extent therein set forth. A waiver by Pledgors or Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the waiving party would otherwise have on any future
occasion. No failure to exercise, nor any delay in exercising on the part of
either party, of any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive or any rights or remedies provided by law.
SECTION 16. AMENDMENTS, MODIFICATIONS AND WAIVERS WITH RESPECT TO
OBLIGATIONS. The Pledgors hereby consent that, without the necessity of any
reservation of rights against the Pledgors, and without notice to or further
assent by the Pledgors, any demand for payment of any of the Obligations made by
the Agent may be rescinded by the Agent and any of the Obligations continued,
and the Obligations, or the liability of the Pledgors or any other party upon or
for any part thereof, or any collateral security or guarantee therefor or right
of offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Agent, and the Reimbursement Agreement, the
Letter of Credit or any collateral security documents or guaranties or documents
in connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Agent may deem advisable from time to time, and any
collateral security at any time held by the Agent for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released, all without
the necessity of any reservation of rights against the Pledgors and without
notice to or further assent by the Pledgors, which will remain bound hereunder,
notwithstanding any such renewal, extension, modification, acceleration,
compromise, amendment, supplement, termination, sale, exchange, waiver,
surrender or release. Other than as set forth in Section 11 hereof, the Agent
shall have no obligation to protect, secure, perfect or insure any other
collateral security document or property subject thereto at any time held as
security for the Obligations. The Pledgors waive any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of
or proof of reliance by the Agent upon this Agreement, and the Obligations shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Agreement, and all dealings between the Pledgors and the Agent shall
likewise be conclusively presumed to have been had or consummated in reliance
upon this Agreement. The Pledgors waive diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Pledgors with
respect to the Obligations.
SECTION 17. ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall be in writing, and shall be given to
the respective addresses and in the manner and with the effect provided for in
the Reimbursement Agreement.
SECTION 18. CONTINUING SECURITY INTEREST. This Agreement shall create
a continuing security interest in the Pledged Collateral and, except as provided
in Section 4 hereof, shall (i) remain in full force and effect until payment and
performance in full of all of the Obligations, (ii) be binding upon the
Pledgors, their successors and assigns, and (iii) inure to the benefit of the
Agent and its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), the Agent, after written notice to
Pledgors, may assign or otherwise transfer its rights under the Reimbursement
Agreement and this Agreement to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to the
Agent herein or otherwise. Upon the payment and performance in full of the
Obligations, the Pledgors shall be entitled to the return, upon their request
and at their expense, of such of the Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof.
SECTION 19. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 20. GOVERNING LAW; TERMS. This Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
Rhode Island. Unless otherwise defined herein or in the Reimbursement Agreement,
terms defined in Article 9 of the Uniform Commercial Code in effect from time to
time in the State of Rhode Island are used herein as therein defined.
SECTION 21. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in separate counterparts, all of which taken together shall be deemed to
constitute one and the same instrument.
SECTION 22. PLEDGEE AS AGENT. Pledgors acknowledge that Agent has been
requested to act hereunder as agent for any financial institutions which are or
become Banks pursuant to the terms of the Credit Agreement, and that Agent, to
the extent it may so act hereunder, shall exercise all of the rights and
remedies hereunder on behalf of, and as agent for the benefit of, any such
Banks, and each of them. The rights, powers, and obligations of Agent are more
particularly described in the Credit Agreement and are hereby incorporated
herein by reference and made a part hereof as if fully set forth herein.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Pledgors have caused this Agreement to be duly
executed and delivered, as of the date and year first above written.
BACOU USA, INC.
By:/s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx
President and Chief Executive Officer
SCHAS INDUSTRIES, LLC
By:/s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx
President and Chief Executive Officer
Agreed as of the date first above written:
FLEET NATIONAL BANK, as Agent
By:/s/ Xxxx X. Xxxxx
--------------------
Xxxx X. Xxxxx
Senior Vice President
EXHIBIT 4.3
REIMBURSEMENT AGREEMENT
by and among
BACOU USA, INC.,
SCHAS INDUSTRIES, LLC
and
FLEET NATIONAL BANK, as Agent
Dated as of Xxxxx 0, 0000
XXXXXXXXXXXXX AGREEMENT
THIS REIMBURSEMENT AGREEMENT (this "Agreement") is made as of the 1st
day of March, 2000, by and among BACOU USA, INC., a Delaware corporation (the
"Bacou"), SCHAS INDUSTRIES, LLC, a Delaware limited liability company ("Schas";
together with Bacou, hereinafter individually referred to as "Borrower" and
collectively referred to as "Borrowers") and FLEET NATIONAL BANK, a national
banking association organized and existing under the laws of the United States
of America, having an office at 00 Xxxxx Xxxxxx xx Xxxxxx, Xxxxxxxxxxxxx, as
agent (the "Agent") for the benefit of the financial institutions which are or
which become Banks under, and as described in, the Credit Agreement dated as of
August 24, 1999 by and among Bacou, Uvex Safety Manufacturing, Inc., Fleet
National Bank, f/k/a BankBoston, N.A., Keybank National Association and Agent
(the "Credit Agreement"), in the following circumstances:
X. Xxxxx has requested a modification to financing with The Xxxxxx
County Industrial Facilities and Pollution Control Financing Authority (the
"Issuer") for the purpose of amending and supplementing the Bonds and Indenture
Documents, as hereinafter defined, relating to the acquisition, renovation,
construction and equipping of Schas' manufacturing facility in Xxxxxx County,
North Carolina (the "Project").
B. The Issuer has reissued its 1997 Industrial Development Revenue
Bonds, Series A (Schas Industries, LLC Project) in the aggregate amount of
$5,590,000 (the "Bonds") pursuant to a Master Indenture dated as of December 1,
1997 by and between the Issuer and The Bank of New York, as trustee (the
"Trustee"), as amended by the First Supplement to Master Indenture dated as of
March 1, 2000 by and between the Issuer and the Trustee (as amended, the "Master
Indenture"), and a Series Supplemental Indenture dated as of December 1, 1997 by
and between the Issuer and the Trustee, as amended by the First Supplement to
Series Supplemental Indenture dated as of March 1, 2000 by and between the
Issuer and the Trustee (as amended, the "Series Supplemental Indenture"). The
proceeds of the Bonds at the time of original issuance were loaned by the Issuer
to Schas pursuant to a Loan Agreement dated as of December 1, 1997 (the "Series
Loan Agreement"; together with the Master Indenture and Series Supplemental
Indenture, hereinafter collectively referred to as the "Indenture Documents"),
under the terms of which Schas agreed to make payments to the Trustee sufficient
to pay the principal of and interest on the Bonds as the same become due and
payable and to pay certain administrative expenses in connection with the Bonds.
C. In order to secure the payment of the principal of and the interest
on and the purchase price of the Bonds, the Borrowers have requested the Agent
to issue its direct pay Letter of Credit (as defined in Section 2.01 hereof) in
favor of the Trustee for the benefit of the owners of the Bonds as more fully
described herein.
D. In order to induce the Agent to issue its Letter of Credit and
thereby provide security for the Bonds, the Agent and the Borrowers are entering
into a Pledge Agreement dated of even date herewith (the "Bond Pledge
Agreement").
NOW, THEREFORE, the Borrowers and the Agent agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. DEFINITIONS. Terms defined in the introductory paragraph
and the recitals to this Agreement have the respective meanings assigned to
those terms in such paragraph and recitals. The following additional terms are
used in this Agreement with the following respective meanings, unless the
context require otherwise:
"A-Drawing" shall have the meaning given to such term in the Letter of
Credit.
"B-Drawing" shall have the meaning given to such term in the Letter of
Credit.
"C-Drawing" shall have the meaning given to such term in the Letter of
Credit.
"Additional Termination Date" shall mean such other termination date
following the Original Termination Date, as hereinafter defined, of the Letter
of Credit, as provided in Section 2.10.
"Anniversary Date" shall have the meaning give to such term in Section
2.10 hereof.
"Authorized Borrower Representative" shall mean the individual or
individuals designated by the Borrowers for this purpose by a written
certificate furnished by the Borrowers.
"Business Day" means a day (a) that is not a Saturday, Sunday or legal
holiday, (b) that is a day on which banking institutions in all of the cities in
which the principal corporate trust office of the Trustee and, if applicable,
the principal offices of the Remarketing Agent and the Agent (and, in the case
of the Agent, the office of the Agent specified in the Letter of Credit for
draws thereunder) are located are not required or authorized pursuant to law to
remain closed, and (c) that is a day on which the New York Stock Exchange is not
closed.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended from time to time, together with corresponding and applicable
regulations and revenue rulings issued with respect thereto by the Treasury
Department or the Internal Revenue Service of the United States.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which are treated as a single employer under Section 414(b) or
414(c) of the Code.
"Date of Issuance" shall mean the date on which the Letter of Credit
is issued.
"Debt" shall mean all items which (a) constitute "debt" or "Debt"
under Section 101(11) of the United States Bankruptcy Code or under the United
States Uniform Fraudulent Conveyance Act, the United States Uniform Fraudulent
Transfer Act or any analogous applicable law, and (b) in accordance with
Generally Accepted Accounting Principles consistently applied, would be included
in determining total liabilities as shown on the liability side of a balance
sheet as of the date Debt is to be determined and, in any event, shall include,
without limitation, any liability, whether or not any such liability shall have
been assumed, (i) on account of deposits, advances or progress payments under
contract, or any indebtedness or liability evidenced by notes, bonds, debentures
or similar obligations (including, without limitation, any purchase option
obligations, conditional sales or similar title retention agreements) or
indebtedness for borrowed money, (ii) secured by any mortgage, pledge, lien or
security interest on or in property owned or acquired, and (iii) under a lease
which, in accordance with Generally Accepted Accounting Principles consistently
applied, should be capitalized, and guaranties, endorsements (other than for
collection in the ordinary course of business) and other contingent obligations
in respect of the obligations of others.
"Demand Loans" shall have the meaning set forth in Section 4.03
hereof.
"Drawing Date" shall mean each date on which the Agent honors a
drawing under the Letter of Credit.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended.
"Event of Default" shall mean any of the events specified in Article
VIII hereof, provided that any requirement for the giving of notice or the lapse
of time or both or the happening of any other condition has been satisfied.
"Expiration Date" shall mean the Original Termination Date or any
Additional Termination Date of the Letter of Credit, as applicable.
"Generally Accepted Accounting Principles" or "GAAP" shall mean those
generally accepted accounting principles and practices which are recognized as
such by the American Institute of Certified Public Accountants acting through
its Accounting Principles Board or by the Financial Accounting Standard Board or
through other appropriate boards or committees thereof and which are
consistently applied so as to properly reflect the financial condition, and the
results of operations and changes in financial position, of the Borrowers, and
their wholly owned subsidiaries (if any), except that any change in any
accounting principle or practice approved by the particular entity's independent
certified public accountants, disclosed in its financial statements and required
or permitted to be made by the Accounting Principles Board or Financial
Accounting Standard Board (or other appropriate board or committee of said
Boards) in order to continue as a generally accepted accounting principle or
practice or consistent with existing generally accepted accounting principles
may be so made. Any dispute or disagreement between the Borrowers, any wholly
owned subsidiary, and the Agent relating to the determination of Generally
Accepted Accounting Principles shall, in the absence of manifest error and
provided the accounting firm is a firm of national standing, be conclusively
resolved for all purposes hereof by the written statement with respect thereto,
delivered to the Agent, of the independent accountant selected by the Borrowers
and any wholly owned subsidiary and reasonably acceptable to the Agent for the
purpose of auditing the periodic financial statements of the Borrowers and any
wholly owned subsidiary.
"Governmental Person" shall mean the government of the United States
or the government of any state or locality therein, any political subdivision or
any governmental, quasi governmental, judicial, public or statutory
instrumentality, authority, body or entity, or other regulatory bureau,
authority, body or entity of the United States or of any state or locality
therein, including the Federal Deposit Insurance Corporation, the Comptroller of
the Currency or the Board of Governors of the Federal Reserve System, any
central bank or any comparable authority.
"Interest Component" shall have the meaning given to such term in the
Letter of Credit.
"Letter of Credit" shall have the meaning set forth in Section 2.01
hereof.
"Letter of Credit Event" shall mean the Original Termination Date or
any Additional Termination Date, where applicable, provided that the Borrowers
have not obtained an alternate letter of credit replacing the Letter of Credit.
"Letter of Credit Payment" shall mean any payment to the Trustee by
the Agent with respect to a drawing by the Trustee under the Letter of Credit.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
security interest, lien, charge, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of, or agreement to give, any financing
statements under the Uniform Commercial Code or comparable law of any
jurisdiction).
"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, financial condition or results of operations of any
Borrower or any Subsidiary of any Borrower.
"Original Termination Date" shall mean March 14, 2001.
"Paying Agent" shall mean the Trustee and its successors and assigns
as Paying Agent for the Bonds, from time to time, as such succession or
assignment may be made under the Indenture Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person" shall mean an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an unincorporated
association, a joint venture or other entity or a government or any agency or
political subdivision thereof.
"Plan" shall mean at any time 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 and is either (i) maintained by a member of the
Controlled Group for employees of a member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing obligation to make
contributions or has within the preceding five plan years made contributions.
"Prime Rate" Prime Rate means the interest rate per annum from time to
time announced and made effective by Agent, or any successor in interest, as its
base rate (or, as the case may be, the base, reference or other similar rate
then designated by Agent for general commercial lending reference purposes), it
being understood that such rate is a reference rate, and not necessarily the
lowest rate of interest charged to any customer. Any change in the Prime Rate
shall become effective on the date on which Agent's change in the Prime Rate
becomes effective.
"Principal Component" shall have the meaning given to such term in the
Letter of Credit.
"Related Documents" shall mean the Indenture Documents, the Bonds, the
Bond Pledge Agreement, the Loan Agreement dated December 1, 1997 by and between
Schas Circular Industries, Inc. and the Issuer, and all documents executed in
connection therewith, each as amended, modified or supplemented from time to
time.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA.
"S.E.C." shall mean the United States Securities and Exchange
Commission.
"Stated Amount" shall mean Five Million Six Hundred Eighty-One
Thousand and Nine Hundred Dollars ($5,681,900), as from time to time reduced and
reinstated as provided in the Letter of Credit.
"Subsidiary" of a Person shall mean a corporation with respect to
which more than 50% of the outstanding shares of stock of each class having
ordinary voting power (other than stock having such power only by reason of the
happening of a contingency) is at the time owned by such Person or by one or
more Subsidiaries of such Person or by such Person and one or more Subsidiaries
of such Person.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares of
capital, stock or other ownership interests of which (except director's
qualifying shares) are at the time directly or indirectly owned by Bacou.
SECTION 1.02. ACCOUNTING TERMS. Unless otherwise specified in this
Agreement, all accounting terms used in this Agreement shall be interpreted, and
all accounting determinations under this Agreement or in any certificate, report
or other documents made or delivered pursuant to this Agreement shall be made,
and all financial statements required to be delivered under this Agreement shall
be prepared in accordance with GAAP as in effect from time to time.
SECTION 1.03. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in the Bonds, any certificate, report or other document made
or delivered pursuant to this Agreement unless the context shall otherwise
require.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement.
(c) Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Indenture Documents.
ARTICLE II. THE LETTER OF CREDIT
SECTION 2.01. LETTER OF CREDIT. At the request of the Borrowers, the
Agent shall, subject to the terms and conditions hereof, issue its letter of
credit substantially in the form of Exhibit "A" attached hereto (the "Letter of
Credit") in the Stated Amount for the account of Schas and shall deliver the
Letter of Credit to the Trustee. The Letter of Credit shall expire on the
Original Termination Date, subject to earlier termination as provided in the
Letter of Credit and/or subject to extension in accordance with Section 2.10
hereof, as the case may be. The Agent shall make payments on the Letter of
Credit from the Agent's own funds.
SECTION 2.02. REDUCTION OF STATED AMOUNT; REINSTATEMENT OF STATED
AMOUNT FOR INTEREST ON THE BONDS. The Stated Amount shall be reduced and
reinstated as specified in the Letter of Credit. The Principal Component (as
defined in the Letter of Credit) shall be reduced immediately upon the date of
each drawing under the Letter of Credit applied to the payment of principal on
the Bonds or applied to purchase the Bonds (as required by the Indenture
Documents). Upon each such reduction in the Principal Component, the Interest
Component (as defined in the Letter of Credit) shall be permanently reduced to
that amount sufficient to provide 50 days' interest on the remaining Principal
Component (computed at the rate of twelve percent (12%) per annum on the basis
of the actual number of days elapsed and on a 365-day or 366-day year as
appropriate).
The Stated Amount shall be reduced by the amount of any Company Bonds
or Bank Bonds, as defined in the Master Indenture; however, the Letter of Credit
will be reinstated and the Stated Amount increased to the extent of any such
Company Bonds or Bank Bonds which are later remarketed. The Stated Amount shall
also be reduced by the amount of any total or partial redemptions of any Bonds
tendered for purchase under the Master Indenture; provided, that the Letter of
Credit will be reinstated and the Stated Amount increased to the extent that any
such bonds are later remarketed.
SECTION 2.03. REIMBURSEMENT OF DRAWINGS. The Borrowers hereby agree to
reimburse the Agent on demand for each Letter of Credit Payment on the related
Drawing Date after such draw has been honored by the Agent under the Letter of
Credit, in accordance with Article IV below.
SECTION 2.04. FEES. For so long as the Letter of Credit is
outstanding, the Borrowers hereby agree to pay to the Agent:
(a) an annual non-refundable letter of credit fee in an amount equal
to sixty (60) basis points (.60%) per annum of the Stated Amount, such fee to be
payable annually commencing on the Date of Issuance and continuing on the 14th
day of each March thereafter. The fee shall be calculated based upon the amount
available to be drawn as of the 14th day of each March that the Letter of Credit
is in effect, commencing on the Date of Issuance. Upon termination or expiration
of the Letter of Credit, any unpaid fees attributable thereto shall be paid in
full. There shall be no reduction or rebate of the fee(s) calculated as
described above as a result of a reduction of the amount available to be drawn
or the termination or expiration of the Letter of Credit.
(b) a fee upon each Drawing under the Letter of Credit which shall be
$250.
(c) a fee in respect of each amendment or transfer of the Letter of
Credit which shall be $75.
(d) a one-time fee of $175 upon issuance of the Letter of Credit to
reimburse the Agent for its costs in underwriting the Letter of Credit loan
facility, which fee shall be earned in full by Agent upon issuance of the Letter
of Credit.
The annual fee set forth in Section 2.04(a) above shall be allocated
prorata among the Banks in accordance with their respective Commitment
Percentage for Loans, as defined in the Credit Agreement; all other fees paid by
Borrower as set forth in this Section 2.04 shall be allocated to and earned
solely by the Agent.
SECTION 2.05. OBLIGATIONS ABSOLUTE. The obligations of the Borrowers
under this Agreement shall be joint and several, primary, absolute,
unconditional and irrevocable, and shall be paid and/or performed strictly in
accordance with the terms of this Agreement notwithstanding:
(a) any lack of validity or enforceability of this Agreement, the
Letter of Credit or the Related Documents;
(b) any amendment or waiver of or any consent to or actual departure
from any covenant or agreement set forth in this Agreement or in any of the
Related Documents;
(c) the existence of any claim, set-off, defense or other right which
the Borrowers, any entity owned (directly or indirectly) by the Borrowers or any
entity that owns (directly or indirectly) any stock or interest in the Borrowers
may have at any time against the Issuer, the Trustee or any other beneficiary or
any transferee of the Letter of Credit (or any persons or entities for which the
Trustee or any such beneficiary or any such transferee may be acting), the
Agent, or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or in the Related Documents, or in any
unrelated transaction;
(d) any certificate or any other document presented under the Letter
of Credit proving to be forged, fraudulent, or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(e) any breach of contract or other dispute between any Borrower and
any Person;
(f) any payment by the Agent under the Letter of Credit against
presentation of a sight draft or certificate which does not comply with the
terms of the Letter of Credit;
(g) any delay, extension of time, renewal, compromise or other
indulgence or modification agreed to by the Agent, with or without notice to or
approval by any Borrower or any of their authorized representatives in respect
of any of such Borrower's indebtedness to the Agent under this Agreement;
(h) any exchange, release or nonperfection of any lien or security
interest in any collateral pledged or otherwise provided to secure any of the
obligations contemplated herein or in any of the other Related Documents; or
(i) any other circumstances or happening whatsoever, whether or not
similar to any of the foregoing.
SECTION 2.06. THE UNIFORM CUSTOMS AND PRACTICE; MODIFICATION, CONSENT,
ETC.
(a) The Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 (the "Uniform
Customs and Practice"), shall be binding on the Borrowers and the Agent with
respect to the Letter of Credit except as otherwise provided in the Letter of
Credit and except to the extent otherwise from time to time agreed to by the
Agent and the Borrowers in writing. The Borrowers assume all risks of the acts
or omissions of the beneficiary of the Letter of Credit with respect to the
Letter of Credit. In furtherance of, and not in limitation of the Agent's rights
and powers under the Uniform Customs and Practice, but subject to all other
provisions of this Section 2.06, it is understood and agreed that the Agent
shall not have any liability for and that the Borrowers assume all
responsibility for: (i) the genuineness of any signature; (ii) the form,
sufficiency, accuracy, genuineness, falsification or legal effect of any draft,
certification or other document required by the Letter of Credit or the
authority of the person signing the same; (iii) the failure of any instrument to
bear any reference or adequate reference to the Letter of Credit or the failure
of any persons to note the amount of any instrument on the reverse of the Letter
of Credit or to surrender the Letter of Credit; (iv) the good faith or acts of
any person other than the Agent and its agents and employees; (v) the existence,
form, sufficiency or breach of or default under any agreement or instrument
(other than the Letter of Credit) of any nature whatsoever; (vi) any delay in
giving or failure to give any notice, demand or protest; and (vii) any error,
omission, delay in or nondelivery of any notice or other communication, however
sent. The determination as to whether the required documents are presented prior
to the expiration of the Letter of Credit and whether such other documents are
in proper and sufficient form for compliance with the Letter of Credit shall be
made by the Agent in its sole discretion, which determination shall be prima
facie evidence of compliance. It is agreed that the Agent may honor, as
complying with the terms of the Letter of Credit and this Agreement, any
documents which appear on their face to be in accordance with the terms and
conditions of the Letter of Credit, and signed or issued by the beneficiary
thereof. Any action, inaction or omission on the part of the Agent under or in
connection with the Letter of Credit or related instruments or documents, if in
good faith and in conformity with such laws, regulations, usage of trade or
commercial or banking customs as may be applicable, shall be binding upon the
Borrowers, shall not place the Agent under any liability to the Borrowers, and
shall not affect, impair or prevent the vesting of any of the Agent's rights or
powers hereunder or any Borrower's obligation to make full reimbursement.
(b) If any Borrower, either in writing or orally (confirmed by either
party in writing), requests or consents to any modification or extension of the
Letter of Credit or waives failure of any draft, certificate or other documents
to comply with the terms of the Letter of Credit, the Agent shall be deemed to
have relied and be entitled to rely on such requests, consents or waivers with
respect to any action taken or omitted by the Agent pursuant to any such
request, consent or waiver, and such extension, modification or waiver shall be
binding upon the Borrowers.
SECTION 2.07. SECURITY. As security for the payment of all obligations
of the Borrowers to the Agent under this Agreement and the Related Documents,
the Borrowers will pledge to the Agent, and grant the Agent a security interest
in, pursuant to the Bond Pledge Agreement, any Borrower's right, title and
interest in and to the Bank Bonds or Company Bonds held by the Trustee pursuant
to Section 5.09 of the Master Indenture.
SECTION 2.08. RELEASE OF PLEDGED BONDS. Upon the Borrowers'
reimbursement to the Agent of all amounts drawn under the Letter of Credit in
accordance with Section 2.03 hereof, then so long as no Event of Default
hereunder or under any Related Document exists, the Agent shall instruct the
Trustee to release to the Borrowers or to the Remarketing Agent from the pledge
and security interest created by the Bond Pledge Agreement a principal amount of
Pledged Bonds equal to the amount of such prepayment. No release by the Agent of
Pledged Bonds shall be construed as releasing any Borrower from any of its
obligations hereunder, including, without limitation, such Borrower's obligation
to pay interest to the Agent at the rate provided herein on the amount of any
draw under the Letter of Credit for the purchase price of such Pledged Bonds and
such Borrower's obligation to pay the unreimbursed principal portion of any
A-Drawing.
SECTION 2.09. REINSTATEMENT OF LETTER OF CREDIT.
(a) After any A-Drawing, the Principal Component shall be reinstated
upon delivery of a certificate in the form of Exhibit A-5 to the Letter of
Credit.
(b) With respect to a C-Drawing made in respect of interest payable on
an Interest Payment Date, as defined in the Indenture Documents, as a scheduled
periodic payment of interest on the Bonds or as a portion of the purchase price
of Bonds being purchased with the proceeds of an A-Drawing pursuant to Section
2.09of the Master Indenture, if the Trustee has not received, within ten (10)
calendar days after any payment in respect of a C-Drawing, notice from the Agent
to the effect that (i) an Event of Default hereunder has occurred, and (ii) the
Letter of Credit will not be reinstated as of the date thereof, then the
Interest Component will automatically be reinstated, as of the close of business
on such tenth calendar day, to an amount which shall be equal to 50 days'
accrued interest (computed at the rate of twelve percent (12%) per annum on the
basis of a 365 or 366 day year, as appropriate, notwithstanding the actual rate
of interest borne from time to time by the Bonds) on the then applicable
Principal Component. The Interest Component will not be reinstated for any
C-Drawing made to pay interest except as specified in the preceding sentence.
SECTION 2.10. AUTOMATIC EXTENSION OF THE LETTER OF CREDIT TERMINATION
DATE. On the first Anniversary Date and on each successive annual Anniversary
Date thereafter, the term of the Letter of Credit and the Original Termination
Date shall be automatically extended to the next Anniversary Date, unless the
Agent provides written notice to the Borrowers at least ninety (90) days prior
to the Original Termination Date or Additional Termination Date, as the case may
be, of the Agent's determination (such determination to be made in Agent's sole
and absolute discretion) not to renew the Letter of Credit, in which event, the
Letter of Credit shall terminate on the Original Termination Date or Additional
Termination Date, as the case may be, specified in such notice. As used herein,
the term "Anniversary Date" shall mean the annual anniversary date of the
original Date of Issuance of the Letter of Credit.
SECTION 2.11. SUBSTITUTION OF LETTER OF CREDIT BANK. The Borrowers
may, upon no less than forty-five (45) days' prior written notice to the Agent,
terminate the Letter of Credit and substitute another banking institution for
the Agent. Upon the expiration of the notice period provided for above, the
Borrowers shall cause the Letter of Credit to be delivered to the Agent for
cancellation. Upon termination of the Letter of Credit under this Section 2.11,
the Borrowers shall forthwith pay or reimburse the Agent for (a) the principal
of and any accrued and unpaid interest on any outstanding Demand Loans and (b)
any of the expenses referred to in Section 9.06 hereof incurred prior to such
termination and any other amounts due under this Agreement and theretofore not
paid or reimbursed to the Agent.
ARTICLE III. CONDITIONS PRECEDENT
SECTION 3.01. INITIAL CONDITIONS PRECEDENT. The obligations of the
Agent to issue the Letter of Credit are subject to the following conditions
precedent having been satisfied on or before the Date of Issuance.
(a) The Agent shall have received on or before the Date of Issuance
the following in form and substance reasonably satisfactory to the Agent:
(1) copies of the resolutions of the Board of Directors of each
Borrower or its Executive Committee authorizing the execution, delivery and
performance of this Agreement, and all other documents to be executed by
Borrowers on the Date of Issuance, certified by the Secretary of such Borrower,
dated the Date of Issuance, which certificate shall state that such resolutions
are in full force and effect on the Date of Issuance;
(2) certificates, dated the Date of Issuance, certifying the name
and true signatures of the representatives of the Borrowers authorized to sign
this Agreement and the other documents to be delivered by the Borrowers
hereunder;
(3) favorable opinions of the Borrowers' counsel (which counsel
shall be satisfactory to the Agent) dated the Date of Issuance, in form and
substance satisfactory to the Agent in its sole discretion and to its counsel,
concerning issues involving the organization of the Borrowers, plus, the
enforceability and binding aspects of this Agreement and all other closing
documents, and with respect to such other matters as the Agent and its counsel
shall reasonably request;
(4) an executed copy of each of the Related Documents;
(5) this Agreement duly executed and delivered;
(6) a legal opinion of counsel to the Issuer (which counsel shall
be satisfactory to the Agent) to the effect that the issuance of the Letter of
Credit will not adversely affect the exclusion of interest on such Bonds from
gross income for federal and North Carolina income tax purposes and that
payments of principal or the Purchase Price of and the interest on the Bonds
from the proceeds of the Letter of Credit will not constitute an avoidable
preference under the Federal Bankruptcy Code if an Act of Bankruptcy occurs,
which opinion shall be satisfactory to the Agent in its sole discretion;
(7) a legal opinion of counsel to the Issuer as to due
authorization, execution and delivery of all documents to be executed by the
Issuer, and that all of the above are legal, valid, binding and enforceable
against the Issuer, limited only by usual special obligation language and
customary exceptions, which opinion shall be satisfactory to the Agent in its
sole discretion;
(8) certified copies of each Borrower's Articles of Incorporation
and by-laws, good standing certificates for such Borrower, and all other
documents, including incumbency certificates and no default certificates;
(9) evidence satisfactory to the Agent that each Borrower is in
compliance in all material respects with all applicable foreign, U.S. federal,
state and local laws and regulations, including all applicable environmental
laws and regulations;
(10) such other legal opinions, agreements, documents or
information as the Agent may reasonably request.
(b) The following statements shall be true and correct in all material
respects on the Date of Issuance and the Agent shall have received a certificate
signed by a duly authorized representative of each Borrower, each dated the Date
of Issuance stating that:
(1) the representations and warranties contained in Article V
hereof are correct in all material respects on and as of the Date of Issuance as
though made on and as of such date;
(2) no Event of Default has occurred and is continuing, or would
result from the issuance of the Letter of Credit and no event has occurred and
is continuing which would constitute an Event of Default but for the requirement
that notice be given or that time elapse or both;
(3) no material adverse change has occurred in the business,
prospects, results of operations or condition, financial or otherwise, of the
Borrowers since the date of the most recent financial statements delivered to
Agent by Borrowers, except as otherwise described to the Agent in writing prior
to the Date of Issuance;
(4) the issuance of the Letter of Credit or the making of any
Demand Loan, shall not render any Borrower insolvent;
(5) to the best of Borrowers' knowledge, the issuance of the
Bonds is and shall be in compliance with all applicable securities law;
(6) the most recent financial statements submitted by any
Borrower accurately and fairly reflect and present its financial condition and
performance in all material respects.
(c) On or before the Date of Issuance, the Related Documents shall
have been authorized, executed and delivered by the parties to such documents,
and such documents shall be in full force and effect.
(d) The Agent shall have received originals (or copies certified to be
true copies by an appropriate representative of the Borrowers or, in the case of
the Issuer, by the Secretary or an Assistant Secretary of the Issuer) of all
governmental and regulatory approvals necessary for the Borrowers with respect
to this Agreement and the transactions contemplated hereby.
(e) The Agent shall have received a letter satisfactory to the Agent
addressed to the Agent from counsel to the Issuer (which counsel shall be
satisfactory to the Agent) allowing the Agent to rely on such counsel's
favorable written opinions described in Subsections (a)(6) and (a)(7) of this
Section 3.01.
(f) The Agent shall have received a letter satisfactory to the Agent
addressed to the Agent from the Trustee's counsel, if any (which counsel shall
be satisfactory to the Agent), allowing the Agent to rely on such counsel's
favorable written opinion.
(g) The Agent shall have received such other and further documents or
information as the Agent may reasonably request.
SECTION 3.02. REPRESENTATIONS AT THE TIME OF EACH DEMAND LOAN. In the
event that any representation or warranty contained in Article V hereof is not
true and correct in all material respects on the date any Demand Loan is made,
then the Borrowers shall be deemed to be in default hereunder.
SECTION 3.03. OTHER REQUIREMENTS. On or before the Date of Issuance:
(a) no legislation, rule, order or decree shall, in the opinion of
counsel for the Agent, purport to prohibit or restrain the issuance of the
Letter of Credit.
(b) The Borrowers' representations and warranties contained herein
shall be correct and complete in all material respects and the Borrowers shall
be in compliance in all material respects with all covenants and agreements
contained herein and applicable to the Borrowers;
(c) no material adverse change shall have occurred in the financial
condition, business, affairs, operations or control of any Borrower since the
date of its financial statements most recently delivered to Agent;
(d) the Bond Pledge Agreement and the UCC-1 financing statements
(collectively, the "Security Documents") shall create a valid and perfected Lien
on the property described therein, and each of the Security Documents and
related UCC filings shall have been duly recorded and filed to the satisfaction
of Agent and its counsel;
(e) The Borrowers shall have secured and delivered (i) all documents
to be executed by the Borrowers duly executed and in form and substance
satisfactory to Agent, and (ii) all consents, waivers, acknowledgments and other
agreements from third persons which Agent may deem necessary or desirable in
order to effectuate the transaction.
ARTICLE IV. DRAWINGS AND PAYMENT PROVISIONS
SECTION 4.01. PLACE AND MANNER OF PAYMENT. All payments by or on
behalf of the Borrowers to the Agent under this Agreement shall be made in
lawful currency of the United States and in immediately available funds on the
date due at the Agent's office, at the address set forth in Section 9.02 hereof.
Any payment, notice of which shall have been given to the Agent by 2:30 p.m.
(Boston, Massachusetts time) on any Business Day and which is received by the
Agent prior to 5:00 p.m. (Boston, Massachusetts time) shall be deemed to have
been received on such day.
SECTION 4.02. PAYMENTS AND COMPUTATIONS. Payments received by the
Agent from the Trustee pursuant to Section 5.02 or Section 5.03 of the Master
Indenture shall be treated as payments made by the Borrowers hereunder. To the
extent the Agent has not received payments from the Trustee under Section 5.02
or Section 5.03 of the Master Indenture sufficient to cover a Drawing on the
Letter of Credit, and in all other instances where reimbursement payments are
required hereunder, the Borrowers shall make each payment hereunder as provided
in Section 4.01. Whenever any payment under this Agreement shall be due on a day
which is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and any interest payable on such payment shall be
payable for such extended time at the applicable rate. Funds received after 5:00
p.m. (Boston, Massachusetts time) shall be deemed received on the next
succeeding Business Day. The Borrowers hereby authorizes the Agent, if and to
the extent payment is not made when due hereunder, to charge from time to time
against any of Borrowers' accounts with the Agent or with any of the Agent's
affiliates any amount so due. All computations of interest and letter of credit
fees hereunder shall be made by the Agent on the basis of a year of 365 days and
the actual number of days elapsed.
SECTION 4.03. TERMS APPLICABLE TO DEMAND LOANS.
(a) The payment of any Letter of Credit Payment shall constitute a
loan to and indebtedness of the Borrowers to the Agent ("Demand Loans") due and
payable on the Drawing Date for such draw. The Borrowers agree to reimburse or
pay to the Agent on the Drawing Date for any Letter of Credit Payment (except in
the case of certain C-Drawings as provided below) a sum equal to (i) the amount
paid by the Agent under the Letter of Credit, and (ii) the amount of any fees,
charges or other costs and expenses incurred by the Agent in connection with any
payment made by the Agent under or with respect to the Letter of Credit;
provided, however, that with respect to any C-Drawing to pay the interest
portion of the purchase price of Bonds purchased under Section 2.09 of the
Master Indenture other than on an Interest Payment Date, payment by the
Borrowers of the amount so paid under the Letter of Credit may be deferred until
the next Interest Payment Date, at which time such amount shall be due and
payable together with interest on the amount so paid under the Letter of Credit
from the date of such payment until paid in full at the rate set forth in this
Section 4.03.
(b) The interest rate applicable to each Demand Loan shall be a
fluctuating rate, computed on the basis of a 365-day year for actual days
elapsed, equal to the Prime Rate. Such interest rate shall apply as of the
making of such Demand Loan, it being understood and agreed that interest shall
accrue on all unreimbursed amounts from and including the Drawing Date for any
drawing(s) under the Letter of Credit to and including the date the Agent is
reimbursed in full for such drawing(s). Interest shall be paid monthly on the
first day of the month following the making of a Demand Loan and on the first
day of each month thereafter on the unpaid principal balance until such time as
the principal balance is repaid in full.
(c) The principal amount of each Demand Loan shall be payable by the
Borrowers immediately on demand.
(d) Except as permitted in clause (a), interest accruing on each
Demand Loan shall be payable on demand and, prior to demand, on the first day of
each month, in arrears (commencing with the first such day after the date of
such Demand Loan) and on the Expiration Date.
SECTION 4.04. EVIDENCE OF DEBT. The books and records of the Agent
shall be conclusive evidence, absent manifest error, of all amounts of
principal, interest, fees and other charges advanced, due, outstanding or paid
pursuant to this Agreement. The Agent agrees to provide statements of such
amounts to the Borrowers and the Trustee upon any Borrower's written request;
provided, however, that, in the event of any conflict between such statement and
the Agent's books and records, the latter shall be controlling in the absence of
manifest error.
SECTION 4.05. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES
(a) If after the date of this Agreement, any change in condition or
applicable law, regulation or interpretation thereof (including any request,
guideline or policy not having the force of law and including, without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) by any authority charged with the administration or interpretation
thereof shall occur which shall:
(1) subject the Agent or the Banks (which shall for the purpose
of this Section include any assignee of the Agent or the Banks) to any tax with
respect to the Letter of Credit (other than any tax on the overall net income of
the Agent or such Banks); or
(2) change the basis of taxation of (A) payments to the Agent to
reimburse drawings hereunder, (B) the Letter of Credit commitment, (C) other
fees and amounts payable hereunder, or (D) any combination of the foregoing
(other than any tax on the overall net income of the Agent or the Banks); or
(3) impose, modify or deem applicable any reserve or deposit
requirements against any assets held by, deposits with or for the account of, or
letters of credit issued by, or loans or commitments by, an office of the Agent;
or
(4) impose upon the Agent or the Banks any other condition with
respect to the Letter of Credit commitment, the Letter of Credit, or this
Agreement; and the result of any of the foregoing shall be to increase the
actual cost to the Agent or the Banks of making any payment or maintaining the
Letter of Credit or to reduce the amount of any payment (whether of principal,
interest or otherwise) receivable by the Agent or to require the Agent to make
any payment, in respect of the Letter of Credit, by or in any amount which the
Agent shall reasonably deem material, then the Borrowers shall either (A)
terminate the Letter of Credit and substitute another banking institution for
the Agent, in which event the Borrowers shall cause the Letter of Credit to be
delivered to the Agent for cancellation; or (B) pay to the Agent, in accordance
with paragraph (c) below, such an amount or amounts as will compensate the Agent
and the Banks for such additional cost, reduction or payment.
(b) If after the date of this Agreement, the Agent shall have
determined that the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Agent or the Banks with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on the Agent's or the Banks' capital as a consequence of its obligations
hereunder to a level below that which the Agent or the Banks could have achieved
but for such adoption, change or compliance (taking into consideration the
Agent's or the Banks' policies with respect to capital adequacy) by an amount
which the Agent reasonably deems to be material, then the Borrowers shall either
(A) terminate the Letter of Credit and substitute another banking institution
for the Agent, in which event the Borrowers shall cause the Letter of Credit to
be delivered to the Agent for cancellation as set forth in the Indenture
Documents; or (B) pay to the Agent, in accordance with paragraph (c) below, such
additional amount or amounts as will compensate the Agent and the Banks for such
reduction.
(c) Whenever under this Section either an amount is payable by the
Borrowers or the Borrowers have the option to substitute another banking
institution for the Agent, the Borrowers shall pay the amount payable to the
Agent or terminate and surrender the Letter of Credit in either event within ten
(10) days of receipt from the Agent of a certificate setting forth such amount
or amounts as will compensate the Agent or the Banks, which certificate shall be
conclusive absent manifest error.
SECTION 4.06. NET PAYMENTS. All payments under this Agreement shall be
made without set-off or counterclaim and in such amounts as may be necessary in
order that all such payments (after deduction or withholding for or on account
of any present or future taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government, any political subdivision or any
taxing authority, other than any tax on or measured by the overall net income of
the Agent or the Banks pursuant to the income tax laws of the United States or
the jurisdiction where the Agent's principal office is located (collectively,
the "Taxes") shall not be less than the amounts otherwise specified to be paid
under this Agreement. A certificate as to any additional amounts payable to the
Agent under this Section 4.06 submitted to the Borrowers by the Agent shall show
in reasonable detail the amount payable and the calculations used to determine
in good faith such amount and shall be presumptively correct absent manifest
error. Any amounts payable by the Borrowers under this Section 4.06 with respect
to past payments shall be due within twenty (20) days following receipt by the
Borrowers of such certificate from the Agent; any such amounts payable with
respect to future payments shall be due concurrently with such future payments.
With respect to each deduction or withholding for or on account of any taxes,
the Borrowers shall promptly furnish to the Agent such certificates, receipts
and other documents as may be required (in the reasonable judgment of the Agent)
to establish any tax credit to which the Agent or the Banks may be entitled.
Without in any way affecting any of its rights under this Section 4.06, the
Agent agrees that, upon its becoming aware that any of the present or future
payments due it or the Banks under this Agreement would be subject to deduction
for Taxes, it will notify the Borrowers in writing and the Agent further agrees
that it will use reasonable efforts not disadvantageous to it (in its sole
determination) in order to avoid or minimize, as the case may be, the payment by
the Borrowers of any additional amounts for Taxes pursuant to this Section 4.06.
SECTION 4.07. APPLICATION OF FUNDS. All payments received by the Agent
from or on behalf of the Borrowers hereunder or pursuant to any of the other
Related Documents shall be applied by the Agent: first, to the payment of
amounts then due and owing by the Borrowers to the Agent under this Agreement or
any of the Related Documents; and, second, if following the return to the Agent
of the Letter of Credit for cancellation and the payment to the Agent of any and
all loans, obligations and liabilities owed by the Borrowers to the Agent or the
Banks under this Agreement or any of the Related Documents, there remains any
balance, such amounts shall be disbursed by the Agent to the Borrowers or such
other person or persons as shall be legally entitled thereto; provided, however
that upon any Event of Default, any payment received hereunder or pursuant to
any of the Related Documents may be applied by the Agent to such obligations of
the Borrowers and in such order (without any duty to xxxxxxxx), as the Agent may
elect in its sole and absolute discretion.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
In order to induce the Agent to enter into this Agreement, to issue
the Letter of Credit and to make Letter of Credit Payments hereunder, the
Borrowers hereby covenant, represent and warrant to the Agent that:
SECTION 5.01. REPRESENTATIONS AND WARRANTIES RESTATED. All of the
representations and warranties set forth in Section 5 of the Credit Agreement
are hereby deemed to be restated by Bacou and set forth herein by reference in
their entirety, as if such representations and warranties were actually stated
herein. Any amendment of any such representation or warranty contained in
Section 5 of the Credit Agreement, and any addition of any representation or
warranty to the Credit Agreement, whenever made, shall be deemed to be instantly
effective under this Section 5.01 without any further action or acknowledgment
of the parties hereto and shall thereupon be a representation and warranty under
this Article V of this Agreement. In the event the Credit Agreement is
terminated or is no longer in effect for any reason whatsoever, then the
representations and warranties incorporated herein shall continue in effect
under this Article V as if fully set forth herein in the form of the
representations and warranties as they existed in the moment prior to the
termination of the Credit Agreement. All references made in Section 5 of the
Credit Agreement to "Credit Documents" and to "Security Documents" are hereby
deemed, for purposes of this Article V of this Agreement, to be references to
this Agreement and the Related Documents, respectively; all references made in
Section 5 of the Credit Agreement to "Borrower" and "Obligors" are hereby
deemed, for purposes of this Article V of this Agreement, to be references to
Bacou; and all references made in Section 5 of the Credit Agreement to "Agent"
and "Banks" are hereby deemed, for purposes of this Article V of this Agreement,
to be references to the Agent. All other capitalized terms used in Section 5 of
the Credit Agreement that are not expressly defined in this Agreement shall have
the meanings ascribed to them in the Credit Agreement, and such meanings are
herein incorporated by reference.
SECTION 5.02. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each
Borrower has the power, authority and legal right to make, deliver and perform
this Agreement and to borrow hereunder and has taken all necessary action to
authorize the borrowings on the terms and conditions of this Agreement and to
authorize the execution, delivery and performance of this Agreement and the
other loan documents to which it is a party. No consent of any Person
(including, without limitation, stockholders or creditors of any Borrower) and
no consent, license, permit, approval or authorization of, exemption by, notice
or report to, or registration, filing or declaration with, any governmental
authority is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement.
This Agreement has been executed and delivered by a duly authorized officer of
each Borrower and this Agreement constitutes the legal, valid and binding
obligation of such Borrower enforceable against such Borrower in accordance with
its respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors rights generally.
SECTION 5.03. OFFERING OF BONDS. Neither Borrower nor any agent acting
on any Borrower's behalf has taken or will take any action which would subject
the issuance or sale of the Bonds to the qualification or registration
provisions of Section 5 of the Securities Act of 1933, as amended, or which
would cause the offer or sale of the Bonds not to be made in compliance with the
provisions of any securities or Blue Sky law of any applicable jurisdiction.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as the Letter of Credit is outstanding or so long as any
amount is due or owing to the Agent hereunder, the Borrowers will, unless the
Agent shall otherwise consent in writing, comply with the following:
SECTION 6.01. TAX EXEMPTION. (a) Permit the use of Bond proceeds in
such manner, or take only those actions, consistent with the maintenance of tax
exemption for interest on the Bonds under the Code and (b) file or cause to be
filed with each appropriate governmental agency any and all statements or other
instruments, if any, required under Sections 103 or 141 through 150 (inclusive)
of the Code, including the regulations thereunder, to be filed with such agency
in order that the interest on the Bonds continues to be generally excludible
from the gross income of the registered owners thereof for Federal income tax
purposes.
SECTION 6.02. ADDITIONAL COVENANTS. Bacou shall comply in all respects
with all covenants set forth in the Credit Agreement, including without
limitation in Section 6 of the Credit Agreement, whether such covenants now
exist or are hereafter added thereto, as such covenants may be amended from time
to time; and all such covenants, whenever in existence and however amended, are
hereby incorporated herein by reference in their entirety. Any amendment of any
such covenant contained in the Credit Agreement, and any addition of any
covenant to the Credit Agreement, whenever occurring, shall be deemed to be
instantly effective under this Section without any further action or
acknowledgment of the parties hereto and shall thereupon be a covenant under
this Section 6 of this Agreement. In the event the Credit Agreement is
terminated or is no longer in effect for any reason whatsoever, then the
covenants incorporated herein shall continue in effect under this Section 6 as
if fully set forth herein in the form of the covenant as it existed in the
moment prior to the termination of the Credit Agreement. All references made in
Section 6 of the Credit Agreement to "Credit Documents" and to "Security
Documents" are hereby deemed, for purposes of this Article VI of this Agreement,
to be references to this Agreement and the Related Documents, respectively; all
references made in Section 6 of the Credit Agreement to "Borrower" and
"Obligors" are hereby deemed, for purposes of this Article VI of this Agreement,
to be references to Bacou; and all references made in Section 6 of the Credit
Agreement to "Agent" and "Banks" are hereby deemed, for purposes of this Article
VI of this Agreement, to be references to the Agent. All other capitalized terms
used in Section 6 of the Credit Agreement that are not expressly defined in this
Agreement shall have the meanings ascribed to them in the Credit Agreement, and
such meanings are herein incorporated by reference.
SECTION 6.03. COMPLIANCE WITH INDENTURE DOCUMENTS. Schas shall comply
in all respects with all of its obligations and agreements under the Indenture
Documents.
ARTICLE VII. NEGATIVE COVENANTS
The Borrowers hereby covenant and agree that, so long as the Bonds
remain in effect or any of the Bonds or the Demand Loans referred to herein
remain outstanding and unpaid, Borrowers will not, nor permit any Subsidiaries
to, unless otherwise consented to in writing by the Agent:
SECTION 7.01. AMENDMENT OF DOCUMENTS; APPOINTMENT OF SUBSTITUTE OR
SUCCESSOR TRUSTEE. Enter into or consent to any material waiver or material
amendment of any provision of the Bonds or any of the Related Documents without
the Agent's prior written consent. The Borrowers will immediately notify the
Agent of any waiver or amendment of the Bonds or any of the Related Documents,
and of the identity of any Person appointed as a successor or substitute
Trustee. After the date hereof, no Borrower will grant a mortgage or permit a
Lien to exist on any real estate owned or leased by any Borrower, with the
exception of Liens permitted under Section 7.02 below, without obtaining the
prior written consent of the Agent.
SECTION 7.02. OTHER COVENANTS. Bacou shall comply in all respects with
all covenants set forth in the Credit Agreement, including without limitation in
Section 7 of the Credit Agreement, whether such covenants now exist or are
hereafter added thereto, as such covenants may be amended from time to time; and
all such covenants, whenever in existence and however amended, are hereby
incorporated herein by reference in their entirety. Any amendment of any such
covenant contained in the Credit Agreement, and any addition of any covenant to
the Credit Agreement, whenever occurring, shall be deemed to be instantly
effective under this Section without any further action or acknowledgment of the
parties hereto and shall thereupon be a covenant under this Section 7 of this
Agreement. In the event the Credit Agreement is terminated or is no longer in
effect for any reason whatsoever, then the covenants incorporated herein shall
continue in effect under this Section 7 as if fully set forth herein in the form
of the covenant as it existed in the moment prior to the termination of the
Credit Agreement. All references made in Section 7 of the Credit Agreement to
"Credit Documents" and to "Security Documents" are hereby deemed, for purposes
of this Article VII of this Agreement, to be references to this Agreement and
the Related Documents, respectively; all references made in Section 7 of the
Credit Agreement to "Borrower" and "Obligors" are hereby deemed, for purposes of
this Article VII of this Agreement, to be references to Bacou; and all
references made in Section 7 of the Credit Agreement to "Agent" and "Banks" are
hereby deemed, for purposes of this Article VII of this Agreement, to be
references to the Agent and Banks, respectively. All other capitalized terms
used in Section 7 of the Credit Agreement that are not expressly defined in this
Agreement shall have the meanings ascribed to them in the Credit Agreement, and
such meanings are herein incorporated by reference.
ARTICLE VIII. DEFAULT AND REMEDIES
SECTION 8.01. EVENT OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an Event or Events of Default hereunder:
(a) Failure by the Borrowers to pay the principal of or interest on
any Demand Loans within five (5) days of demand by Agent; or
(b) Failure by the Borrowers to pay any fee or expense required
hereunder within fifteen (15) days of demand by Agent; or
(c) The occurrence of a default or Event of Default under any document
or instrument evidencing or executed in connection with any other credit
facility or note between any Borrower and the Agent or the Banks, including
without limitation under the Credit Agreement; or
(d) If any representation or warranty or statement made or deemed made
by any Borrower in this Agreement or which is contained in any certificate,
document, financial or other statement furnished at any time under or in
connection with this Agreement that is relevant to this Agreement shall prove to
Agent's reasonable satisfaction to have been incorrect or misleading in any
material respect; or
(e) If any representation or warranty contained in Article V hereof is
not true and correct in all material respects on the date any Demand Loan is
made; or
(f) Default by any Borrower in the observance or performance of any of
the covenants or agreements contained in Article VI or Article VII of this
Agreement; or
(g) Default by any Borrower in the observance or performance of any of
the covenants or agreements contained in this Agreement (except defaults which
are governed by any other paragraph in this Section 8.01, which shall be
governed by such paragraph), provided that the Borrowers shall have a period of
twenty (20) days from the date any officer of any Borrower becomes aware of such
default within which to cure such default, before an Event of Default shall be
deemed to have occurred (no notice of such default being required); or
(h) If any Borrower or any Subsidiary of any Borrower shall (i)
default in the payment of principal of or interest on any indebtedness or any
obligation with respect to any indebtedness (other than the Bonds), or for the
deferred purchase price of any property or assets or for any capitalized lease
obligation or on any such obligation guaranteed by such Borrower or in respect
of which it is otherwise contingently liable, beyond the period of grace, if
any, provided in the instrument or agreement under which the same was created or
(ii) default in the observance or performance of any other term, condition or
agreement contained in any such indebtedness or in any instrument or agreement
evidencing, securing or relating thereto if the effect thereof is to cause such
indebtedness to become due prior to its stated maturity; or
(i) If any Borrower or any of its Subsidiaries commences any case,
proceeding or other action relating to it in bankruptcy or seeking
reorganization, liquidation, dissolution, winding up, arrangement, composition,
readjustment of its debts, or for any other relief, under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement, composition,
readjustment of debt or any other similar act or law, of any jurisdiction,
domestic or foreign, now or hereafter existing, or any action by any Borrower or
any of its Subsidiaries indicating its consent to, approval of, or acquiescence
in, any such proceeding; the application by any Borrower or any of its
Subsidiaries for a receiver, custodian or trustee of it or for all or a
substantial part of its property; the making by any Borrower or any of its
Subsidiaries of a general assignment for the benefit of creditors; or the
inability or the admission by any Borrower or any of its Subsidiaries in writing
of its inability to pay its debts as they mature; or
(j) Commencement of any case, proceeding or the taking of other action
against any Borrower or any of its Subsidiaries in bankruptcy or seeking
reorganization, liquidation, dissolution, winding-up, arrangement, composition
or readjustment of its debts, or any other relief, under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement, composition,
readjustment of debt or any other similar act or law, of any jurisdiction,
domestic or foreign, now or hereafter existing; or the appointment of a
receiver, custodian or trustee of any Borrower or any of its Subsidiaries or for
all or a substantial part of any of its property; or the issuance of a warrant
of attachment, execution, distraint, or similar process, against any substantial
part of the property of any Borrower or any of its Subsidiaries; and the
continuance of any of such events for sixty (60) days undismissed, unbonded or
undischarged; or
(k) There shall be entered against any Borrower or any of its
Subsidiaries one or more judgments or decrees (not paid or fully covered by
insurance) involving in the aggregate a liability of One Hundred Thousand
Dollars ($100,000) or more and the same remains undischarged or unbonded for
sixty (60) days; or
(l) Any Borrower is permanently enjoined, restrained or in any manner
prevented by court order from conducting all or any material part of its
business affairs; or
(m) Merger or consolidation with another corporation by any Borrower
in violation of any covenant set forth in this Agreement; or
(n) Dissolution or termination of existence; or
(o) Any Borrower shall become an "investment company" within the
meaning of the Investment Company Act of 1940, as the same may be amended from
time to time; or
(p) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer to or
terminate, any Plan, which Reportable Event or institution of proceedings is, in
the opinion of the Agent, likely to result in the termination of such Plan for
purposes of Title IV or continuance of such Reportable Event unremedied for ten
(10) days after notice of such Reportable Event pursuant to Section 4043(a), (c)
or (d) of ERISA is given or the continuance of such proceedings for ten (10)
days after commencement thereof, as the case may be, (iv) any Plan shall
terminate for purposes of Title IV of ERISA, or (v) any other event or condition
shall occur or exist with respect to any Plan or having consequences under
ERISA; and in each case in clauses (i) through (v) above, such event or
condition could subject any Borrower or any of its Subsidiaries to any tax,
penalty or other liability material in relation to the business, operations,
property or financial or other condition of any Borrower and any of its
Subsidiaries taken as a whole; or
(q) An Event of Default has occurred under any of the Related
Documents; or
(r) The occurrence of any cessation of normal business operation of
any Borrower, or substantial curtailment thereof, whether voluntary or
involuntary, or the issuance or entry of any order, injunction, judgment or
decree by any governmental agency or court requiring a cessation of such normal
business operations or substantial curtailment thereof if such occurrence or
cessation results in a Material Adverse Effect.
Upon any such Event of Default, the Agent may, at its election (except
in the case of the occurrence of an Event of Default under Section 8.01(h) or
Section 8.01(i) hereof, in which case all such amounts shall be immediately due
and payable), (1) declare the obligations of the Borrowers hereunder, including
without limitation those obligations under any Demand Loans, to be forthwith due
and payable in full and the same shall thereupon become immediately due and
payable without demand, presentment, protest or further notice of any kind, all
of which are hereby expressly waived, and/or (2) demand the immediate deposit of
cash collateral in an amount equal to the full amount then available or which
may subsequently become available under the Letter of Credit, and the same shall
thereupon become due and payable (provided, however, that those moneys will only
be used to reimburse the Agent after the Agent has honored a draw under the
Letter of Credit and will not be used to make payments directly to the Trustee
and provided further that each Borrower acknowledges that such moneys are
subject to any rebate and yield restriction requirements applicable to the
Bonds), and/or (3) proceed to enforce all other remedies available to it under
applicable law, and/or (4) exercise all rights and remedies provided to the
Agent under the Related Documents; provided, that under no circumstances shall
the Agent receive more than the aggregate amount due under this Agreement. Upon
any such Event of Default, the Agent shall notify the Trustee with the effect
contemplated by the Indenture Documents.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. AMENDMENTS AND WAIVERS. This Agreement may not be
amended, modified, discharged or waived except by an instrument in writing
executed by the parties hereto. No course of dealings between the Borrowers and
the Agent and no delays on the part of the Agent in exercising any rights with
respect to any Event of Default shall operate as a waiver of any rights of the
Agent.
SECTION 9.02. NOTICES. Except as otherwise specified herein or by
notice, all notices, communications and demands hereunder shall be in writing
and sent by certified or registered mail, return receipt requested, or by
overnight delivery service, with all charges prepaid to the applicable party or
parties at the addresses set forth below, or by facsimile transmission
(including, without limitation, computer generated facsimile), promptly
confirmed in writing sent by first class mail, to the facsimile numbers and
addresses set forth below:
If to the Borrowers: Bacou USA, Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: General Counsel
If to the Agent: Fleet National Bank
000 Xxxxxxx Xxxxxx
Mail Code: 01-07-05
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
with a copy to: Xxxxx X. Xxxxxx, Esquire
Xxxxxxxxx Xxxx & Xxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties given in accordance with this Section
at least ten (10) days in advance thereof. All such notices and correspondence
shall be deemed given upon the earliest to occur (i) actual receipt, (ii) if
sent by certified or registered mail, three (3) business days after being
postmarked, (iii) if sent by overnight delivery service, when received or when
delivery is refused, or (iv) if sent by facsimile, when receipt of such
transmission is acknowledged.
SECTION 9.03. RIGHT OF SET OFF. Each Borrower hereby grants to Agent
and Banks, a lien, security interest and right of set off as security for all
liabilities and obligations to Agent hereunder or under the Bonds, whether now
existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Agent, Banks or any entity under the control of Fleet
Boston Corporation, or in transit to any of them. At any time, without demand or
notice, Agent and Banks may set off the same or any part thereof and apply the
same to any liability or obligation of Borrowers even though unmatured and
regardless of the adequacy of any other collateral securing the Letter of
Credit. ANY AND ALL RIGHTS TO REQUIRE AGENT OR BANKS TO EXERCISE ANY OF THEIR
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN,
PRIOR TO EXERCISING ANY OF THEIR RIGHTS OF SET OFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED. The rights of the Agent and the Banks under
this subsection are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Agent and Banks may have.
SECTION 9.04. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Agent, any right, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. No waiver by the Agent of any Event of Default shall operate as a
waiver of any other Event of Default or of the same Event of Default on a future
occasion. The rights and remedies hereunder provided are cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 9.05. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto shall survive the execution and delivery
of this Agreement and the Bonds until all of the Bonds and all other amounts
owing hereunder shall have been paid in full.
SECTION 9.06. PAYMENT OF EXPENSES AND TAXES. The Borrowers agree (a)
to pay or reimburse the Agent and Banks for all their reasonable out-of-pocket
costs and expenses incurred in connection with the development, negotiation,
preparation, execution, consummation and any amendment or modification of this
Agreement, and the Bonds and any other documents prepared in connection
herewith, including the fees and expenses of counsel to the Agent and the Banks,
(b) to pay or reimburse the Agent and the Banks for all their reasonable costs
and expenses incurred in connection with the enforcement of, or the preservation
of, any rights under this Agreement and the Bonds, (c) to pay, indemnify, and to
hold the Agent and the Banks harmless from any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment or modification of or any
waiver or consent under or in respect of, this Agreement or the Bonds, and (d)
to pay, indemnify and hold the Agent and the Banks harmless from and against any
and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement. The agreements in this Section 9.06 shall
survive the payment of the Bonds and the termination of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions of this Agreement or affecting the validity, enforceability or
authorization of such provision in any other jurisdiction.
SECTION 9.08. TERMINATION OF AGREEMENT. The obligations of the
Borrowers under this Agreement shall continue until the later of (a) the
Expiration Date or (b) the date upon which all amounts due and owing to the
Agent under this Agreement shall have been paid in full, and shall (i) be
binding upon each Borrower and its successors and assigns, and (ii) inure to the
benefit of and be enforceable by the Agent and its successors, transferees and
assigns; provided, however, that (x) the Borrowers may not assign all or any
part of this Agreement without the prior written consent of the Agent and (y)
the obligations of the Borrowers pursuant to Section 9.06, and Section 9.09
hereof shall survive the termination of this Agreement.
SECTION 9.09. INDEMNITY, COSTS, EXPENSES. The Borrowers agree, jointly
and severally, to indemnify, defend and hold the Agent and the Banks harmless
from and against, and to pay on demand, any and all claims, damages, losses,
liabilities, reasonable costs and expenses whatsoever which the Agent or the
Banks may incur or suffer by reason of or in connection with (i) the execution
and delivery of this Agreement and/or (ii) payment or failure to pay under the
Letter of Credit and/or (iii) any Limited Offering Memorandum or other such
offering document (other than any such claims which specifically relate to
information provided by Agent) or any other documents which may be delivered in
connection with this Agreement, the Letter of Credit or the Related Documents,
including, without limitation, the fees and expenses of counsel for the Agent
and the Banks with respect thereto and with respect to advising the Agent and
the Banks on or prior to the date hereof as to their rights and responsibilities
under this Agreement, the Letter of Credit, or the Related Documents, and all
fees and expenses, if any, in connection with the enforcement or defense of the
rights of the Agent and the Banks in connection with this Agreement or the
Related Documents, or the collection of any moneys due hereunder, or under the
Letter of Credit, the Bonds, the Related Documents, and such other documents
which may be delivered in connection with this Agreement and the Letter of
Credit. The obligations of the Borrowers under this Section shall survive
payment of any amounts due under this Agreement, the Bonds and the expiration of
the Letter of Credit.
SECTION 9.10. LIABILITY OF THE AGENT. As between the Borrowers and the
Agent, the Borrowers assume all risks of the acts or omissions of the Trustee
and any transferee of the Letter of Credit with respect to its use of the Letter
of Credit. Neither the Agent nor any of its employees, officers or directors
shall be liable or responsible for: (a) the use which may be made of the Letter
of Credit or for any acts or omissions of the Trustee and any transferee in
connection therewith; (b) payment by the Agent against presentation of documents
which do not comply in any immaterial respect with the terms of the Letter of
Credit including failure of any documents to bear any reference or adequate
reference to the Letter of Credit or (c) any other circumstances whatsoever in
making or failing to make payment under the Letter of Credit except only that
the Borrowers shall have a claim against the Agent, and the Agent shall be
liable to the Borrowers, to the extent, but only to the extent, of any direct,
as opposed to consequential, damages suffered by the Borrowers which were caused
by (i) the Agent's willful misconduct or gross negligence in determining whether
documents presented under the Letter of Credit comply with the terms of the
Letter of Credit (it being understood that any such noncompliance in any
immaterial respect shall not be deemed willful misconduct or gross negligence of
the Agent) or (ii) the Agent's willful failure to pay under the Letter of Credit
after presentation to it by the Trustee (or any successor Trustee to whom the
Letter of Credit has been transferred in accordance with its terms) of a sight
draft and certificate strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, the
Agent may accept documents that appear on their face to be in order, without
responsibility for further investigation, in the absence of any actual notice or
information to the contrary.
SECTION 9.11. AGENT'S AND BANKS' RIGHT TO SELL DEMAND LOANS OR
PARTICIPATIONS. The Agent and the Banks reserve the right to sell, assign,
transfer, or otherwise dispose of their rights in and under this Agreement, the
Letter of Credit, or any Related Documents, or any Demand Loans or any part
thereof made hereunder, and further reserves the right to grant or sell
participation interests in and to the Letter of Credit, this Agreement and any
Demand Loans made hereunder. The Agent and the Banks may provide to any Person
interested in purchasing such interest, any financial statements or information
they shall have in their possession or within their knowledge.
SECTION 9.12. PARTICIPATION INTERESTS. Agent and the Banks shall have
the unrestricted right at any time and from time to time, and without the
consent of or notice to Borrowers, to grant to one or more banks or other
financial institutions (each a "Participant") participating interests in Agent's
or Banks' rights and obligations hereunder and under the Related Documents. In
the event of any such grant by Agent or Banks of a participating interest to a
Participant, whether or not upon notice to Borrowers, Agent and Banks shall
remain responsible for the performance of their obligations hereunder and
Borrowers shall continue to deal solely and directly with Agent in connection
with Agent's and Banks' rights and obligations hereunder. Agent and Banks may
furnish any information concerning Borrowers in their possession from time to
time to prospective Assignees and Participants provided that Agent and Banks
shall require any such prospective Assignee or Participant to agree in writing
to maintain the confidentiality of such information.
SECTION 9.13. PLEDGE BY AGENT AND BANKS. Agent and Banks may at any
time pledge all or any portion of their rights under this Agreement, the Letter
of Credit or the Related Documents including any portion thereof to any of the
twelve (12) Federal Reserve Agents organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement thereof shall
release Agent or Banks from its obligations under this Agreement, the Letter of
Credit or the Related Documents.
SECTION 9.14. RELATED DOCUMENTS. If there is any conflict between the
terms, covenants and conditions of this Agreement and the Related Documents, the
terms, covenants and conditions of this Agreement shall control.
SECTION 9.15. ASSIGNMENT OR SALE OF RIGHTS OF AGENT AND BANKS. Agent
and Banks shall have the unrestricted right at any time or from time to time,
and without Borrowers' consent, to assign all or any portion of their rights and
obligations hereunder to one or more banks or other financial institutions
(each, an "Assignee"), and each Borrower agrees that it shall execute such
documents, including without limitation, amendments to this Agreement and to any
other documents and agreements executed in connection herewith as Agent and
Banks shall deem necessary to effect the foregoing. In addition, at the request
of Agent, Banks, and any such Assignee, Borrowers shall issue one or more new
promissory notes, as applicable, to any such Assignee and, if Agent or Banks
have retained any of their rights and obligations hereunder following such
assignment, to Agent or Banks, which new promissory notes shall be issued in
replacement of, but not in discharge of, the liability evidenced by the
promissory note held by Agent and Banks prior to such assignment and shall
reflect the amount of the respective commitments and loans held by such Assignee
and Agent and Banks after giving effect to such assignment. Upon the execution
and delivery of appropriate assignment documentation, amendments and any other
documentation required by Agent and Banks in connection with such assignment,
and the payment by Assignee of the purchase price agreed to by Agent and Banks
and such Assignee, such Assignee shall be a party to this Agreement and shall
have all of the rights and obligations of Agent or Banks, as the case may be,
hereunder (and under any and all other guaranties, documents, instruments and
agreements executed in connection herewith) to the extent that such rights and
obligations have been assigned by Agent and/or Banks pursuant to the assignment
documentation between Agent, Banks and such Assignee, and Agent and/or Banks, as
applicable, shall be released from their obligations hereunder and thereunder to
a corresponding extent.
SECTION 9.16. CAPTIONS. Captions in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
SECTION 9.17. GOVERNING LAW. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
Rhode Island.
SECTION 9.18. INTENTION NOT TO VIOLATE USURY LAWS. All agreements
between Borrowers and Agent are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of maturity
of the indebtedness evidenced by this Agreement or the Letter of Credit or
otherwise, shall the amount paid or agreed to be paid to Agent for the use or
forbearance of the indebtedness evidenced by this Agreement or the Letter of
Credit exceed the maximum permissible under the law. As used herein, the term
"applicable law" shall mean the law in effect as of the date hereof provided,
however that in the event that there is a change in law which results in a
higher permissible rate of interest, then this Agreement shall be governed by
such law as of its effective date. In this regard, it is expressly agreed that
it is the intent of Borrowers and Agent in the execution, delivery and
acceptance of this Agreement to contract in strict compliance with the internal
laws of the Commonwealth of Massachusetts from time to time in effect. If, under
or from any circumstances whatsoever, fulfillment of any provision hereof or of
any of this Agreement or the Related Documents at the time of performance of
such provision shall be due, shall involve transcending the limit of such
validity prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
circumstances whatsoever Agent should ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced by
this Agreement or the Letter of Credit and not to the payment of interest. This
provision shall control every other provision of all agreements between
Borrowers and Agent.
SECTION 9.19. CONSTRUCTION. Borrowers acknowledge that Agent has been
requested to act hereunder as agent for any financial institutions which are or
become Banks pursuant to the terms of the Credit Agreement, and that Agent, to
the extent it may so act hereunder, shall exercise all of the rights and
remedies hereunder on behalf of, and as agent for the benefit of, any such
Banks, and each of them. The rights, powers, and obligations of Agent are more
particularly described in the Credit Agreement and are hereby incorporated
herein by reference and made a part hereof as if fully set forth herein. Each
reference herein to Agent shall be deemed to include its successors and assigns,
and each reference to Borrower or Borrowers and any pronouns referring thereto
as used herein shall be construed in the masculine, feminine, neuter, singular
or plural as the context may require and shall be deemed to include the
successors and assigns of each Borrower, all of whom shall be bound by the
provisions hereof. Unless otherwise indicated the term "Borrowers" as used
herein shall if this instrument is signed by more than one party, mean
"Borrowers and each of them" and "Borrowers or any one of them", as the context
permits, and each and every undertaking shall be their joint and several
undertaking.
SECTION 9.20. WAIVER OF JURY TRIAL; SERVICE OF PROCESS. IN THE EVENT
THAT AGENT BRINGS ANY ACTION OR PROCEEDING IN CONNECTION HEREWITH IN ANY COURT
OF RECORD OF THE STATE OF RHODE ISLAND OR THE UNITED STATES IN SUCH STATE, EACH
BORROWER HEREBY IRREVOCABLY CONSENTS TO AND CONFERS PERSONAL JURISDICTION OF
SUCH COURT OVER SUCH BORROWER BY SUCH COURT. IN ANY SUCH ACTION OR PROCEEDING,
EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE UPON SUCH BORROWER BY
MAILING A COPY OF SUCH SUMMONS, COMPLAINT OR OTHER PROCESS BY UNITED STATES
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO BORROWER AT THE
ADDRESS DESIGNATED ABOVE. EACH BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT
SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. BORROWERS AND AGENT EACH HEREBY
AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR THE RELATED
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY BORROWERS AND AGENT, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. THE AGENT IS HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWERS.
EXCEPT AS PROHIBITED BY LAW, EACH BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. EACH BORROWER (A) CERTIFIES THAT NO
REPRESENTATIVE OR ATTORNEY OF AGENT OR BANKS HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS, AND (B) ACKNOWLEDGES THAT THE AGENT HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE RELATED DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
IN WITNESS WHEREOF, the parties have by their duly authorized
representatives executed this Agreement as of the day and year first above
written.
BACOU USA, INC.
By:/s/ Xxxxxx X. Xxxx
------------------------------- -----------------------------------------
Xxxxxx X. Xxxx
President and Chief Executive Officer
SCHAS INDUSTRIES, LLC
By:/s/ Xxxxxx X. Xxxx
------------------------------- -----------------------------------------
Xxxxxx X. Xxxx
Chairman and Chief Executive Officer
FLEET NATIONAL BANK, as Agent
By:/s/ Xxxx X. Xxxxx
------------------------------- -----------------------------------------
Xxxx X. Xxxxx
Senior Vice President
