$300,000,000
CREDIT AGREEMENT
Dated as of March 31, 1998
among
COLUMBUS XXXXXXXX CORPORATION,
as Borrower,
THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER INSTITUTIONAL LENDERS NAMED HEREIN,
as Initial Lenders,
FLEET NATIONAL BANK,
as the Initial Issuing Bank,
FLEET NATIONAL BANK,
as the Swing Line Bank,
and
FLEET NATIONAL BANK,
as Administrative Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..............................................2
SECTION 1.01. Certain Defined Terms.................................2
SECTION 1.02. Computation of Time Periods..........................25
SECTION 1.03. Accounting Terms.....................................26
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES,
THE LETTERS OF CREDIT AND ALTERNATIVE
CURRENCY LETTERS OF CREDIT...................................................26
SECTION 2.01. The Advances.........................................26
(a) The Revolving Credit Advances.....................26
(b) The Alternative Currency Revolving
Credit Advances................................26
(c) The Swing Line Advances...........................27
(d) Letters of Credit.................................27
(e) Alternative Currency Letters of Credit............28
SECTION 2.02. Making the Advances..................................28
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit.............................32
(a) Request for Issuance..............................32
(b) Letter of Credit Reports..........................32
(c) Drawing and Reimbursement.........................33
(d) Alternative Currency Letters of Credit............34
(e) Failure to Make Letter of Credit Advances
or Alternative Currency Letter of
Credit Advances................................35
SECTION 2.04. Repayment of Advances................................36
(a) Revolving Credit Advances.........................36
(b) Alternative Currency Revolving Credit Advances....36
(c) Swing Line Advances...............................36
(d) Letter of Credit Advances and Alternative
Currency Letter of Credit Advances.............36
SECTION 2.05. Termination or Reduction of the Commitments..........37
(a) Optional..........................................37
(b) Mandatory.........................................37
SECTION 2.06. Prepayments..........................................38
(a) Optional..........................................38
(b) Mandatory.........................................38
SECTION 2.07. Interest.............................................40
(a) Scheduled Interest................................40
(i) Prime Rate Advances......................40
(ii) Eurodollar Rate Advances.................40
(b) Default Interest..................................40
(c) Notice of Interest Rate...........................40
i
SECTION 2.08. Fees.................................................40
(a) Revolving Credit Commitment Fee...................40
(b) Letter of Credit and Alternative Currency
Letter of Credit Fees..........................41
(c) Administrative Agent's Fees.......................41
SECTION 2.09. Conversion of Advances...............................42
(a) Optional..........................................42
(b) Mandatory.........................................42
(c) Alternative Currency Revolving Credit Advances....42
SECTION 2.10. Increased Costs, Etc.................................42
SECTION 2.11. Payments and Computations............................44
SECTION 2.12. Taxes................................................45
SECTION 2.13. Sharing of Payments, Etc.............................47
SECTION 2.14. Use of Proceeds......................................48
SECTION 2.15. Defaulting Lenders...................................48
ARTICLE III
CONDITIONS OF LENDING........................................................51
SECTION 3.01. Conditions Precedent to Initial Extension of Credit..51
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance..57
SECTION 3.03. Determinations Under Section 3.01....................59
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...............................................59
SECTION 4.01. Representations and Warranties of the Borrower.......59
ARTICLE V
COVENANTS OF THE BORROWER AND THE SUBSIDIARIES...............................67
SECTION 5.01. Affirmative Covenants................................67
(a) Compliance with Law...............................67
(b) Payment of Taxes, Etc.............................67
(c) Compliance with Environmental Laws................67
(d) Preparation of Environmental Reports..............67
(e) Maintenance of Insurance..........................68
(f) Preservation of Corporate Existence, Etc..........68
(g) Visitation Rights.................................69
(h) Keeping of Books..................................69
(i) Maintenance of Properties, Etc....................69
(j) Compliance with Terms of Leaseholds...............69
(k) Performance of Material Contracts.................69
(l) Transactions with Affiliates......................69
(m) Agreement to Grant Additional Security............70
(n) Performance of Acquisition Documents..............72
(o) Cash Concentration Accounts.......................72
SECTION 5.02. Negative Covenants...................................72
(a) Liens, Etc........................................72
ii
(b) Debt..............................................73
(c) Lease Obligations.................................75
(d) Fundamental Changes...............................75
(e) Sales, Etc. of Assets.............................76
(f) Investments in Other Persons......................77
(g) Dividends, Etc....................................78
(h) Change in Nature of Business......................78
(i) Charter Amendments................................78
(j) Accounting Changes................................78
(k) Prepayments, Etc. of Debt.........................78
(l) Amendment, Etc. of Acquisition Documents or
Senior Subordinated Note Documents.............79
(m) Amendment, Etc. of Material Contracts.............79
(n) Negative Pledge...................................79
(o) Partnerships, New Subsidiaries....................79
(p) Speculative Transactions..........................80
(q) Capital Expenditures..............................80
(r) Issuance of Stock.................................80
SECTION 5.03. Reporting Requirements...............................80
(a) Default Notice....................................80
(b) Quarterly Financials..............................80
(c) Annual Financials.................................81
(d) Pro Forma Financials..............................82
(e) Annual Forecasts..................................82
(f) ERISA Events and ERISA Reports....................82
(g) Plan Terminations.................................82
(h) Actuarial Reports.................................83
(i) Plan Annual Reports...............................83
(j) Annual Plan Summaries.............................83
(k) Multiemployer Plan Notices........................83
(l) Litigation........................................83
(m) Securities Reports................................83
(n) Creditor Reports..................................83
(o) Agreement Notices.................................83
(p) Revenue Agent Reports.............................84
(q) Environmental Conditions..........................84
(r) Real Property.....................................84
(s) Insurance.........................................84
(t) Management Letters................................84
(u) Other Information.................................84
SECTION 5.04. Financial Covenants..................................85
(a) Funded Debt to EBITDA Ratio.......................85
(b) Interest Coverage Ratio...........................85
(c) Fixed Charge Coverage Ratio.......................85
(d) Minimum Net Worth.................................86
iii
ARTICLE VI
EVENTS OF DEFAULT............................................................86
SECTION 6.01 Events of Default....................................86
SECTION 6.02. Actions in Respect of the Letters of Credit and
Alternative Currency Letters of Credit
upon Default..............................89
ARTICLE VII
THE ADMINISTRATIVE AGENT.....................................................90
SECTION 7.01. Authorization and Action.............................90
SECTION 7.02. Agent's Reliance, Etc................................90
SECTION 7.03. Fleet and Affiliates.................................91
SECTION 7.04. Lender Party Credit Decision.........................91
SECTION 7.05. Indemnification......................................91
SECTION 7.06. Successor Administrative Agents......................92
ARTICLE VIII
MISCELLANEOUS................................................................93
SECTION 8.01. Amendments, Etc......................................93
SECTION 8.02. Notices Etc..........................................94
SECTION 8.03. No Waiver; Remedies..................................96
SECTION 8.04. Costs and Expenses...................................96
SECTION 8.05. Right of Set-off.....................................97
SECTION 8.06. Binding Effect.......................................98
SECTION 8.07. Assignments and Participations.......................98
SECTION 8.08. Execution in Counterparts...........................101
SECTION 8.09. No Liability of the Issuing Bank....................101
SECTION 8.10. Confidentiality.....................................102
SECTION 8.11. JURISDICTION, ETC...................................102
SECTION 8.12. GOVERNING LAW.......................................102
SECTION 8.13. WAIVER OF JURY TRIAL................................103
iv
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Revolving Credit Note
Exhibit C - Form of Alternative Currency Revolving Credit Note
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Notice of Alternative Currency Borrowing
Exhibit F - Form of Security Agreement
Exhibit G - Form of Intellectual Property Security Agreement
Exhibit H - Form of Subsidiary Guaranty
SCHEDULES
Schedule I Commitments and Applicable Lending Offices
Schedule II Existing Letters of Credit
Schedule 3.01(a)(ix) States in which Loan Parties are Qualified to do Business
Schedule 4.01(b) Subsidiaries
Schedule 4.01(d) Required Authorizations and Approvals
Schedule 4.01(i) Disclosed Litigation
Schedule 4.01(k) Plans; Multiemployer Plans; Welfare Plans
Schedule 4.01(o) Environmental Assessment Reports
Schedule Certain Agreements
Schedule 4.01(r) Pledged Foreign Subsidiaries
Schedule 4.01(t) Open Tax Years
Schedule 4.01(z) Existing Debt (other than Surviving Debt)
Schedule 4.01(aa) Surviving Debt
Schedule 4.01(bb) Owned Real Estate
Schedule 4.01(cc) Leased Real Estate
Schedule 4.01(dd) Material Contracts
Schedule 4.01(ee) Investments
Schedule 4.01(ff) Intellectual Property
Schedule 5.02(a)(iii) Liens
Schedule 5.02(f)(i) Investments in Subsidiaries
Schedule 5.02(f)(vii) Existing Investments
Schedule 5.02(r) Existing Issuances, Etc. of Stock
v
CREDIT AGREEMENT
CREDIT AGREEMENT (this "Agreement"), dated as of March 31, 1998, by and
among COLUMBUS XXXXXXXX CORPORATION, a New York corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders listed on the
signature pages hereof as the Initial Lenders (the "Initial Lenders"), FLEET
NATIONAL BANK, as Initial Issuing Bank (the "Initial Issuing Bank"), FLEET
NATIONAL BANK, as the Swing Line Bank (as hereinafter defined), and FLEET
NATIONAL BANK, as administrative agent (together with any successor appointed
pursuant to Article VII, the "Administrative Agent") for the Lender Parties (as
hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower, the lenders party thereto, the Initial Issuing Bank, the
Swing Line Bank and the Administrative Agent are parties to that certain Credit
Agreement, originally dated as of October 16, 1996 (as heretofore amended and in
effect on the date of this Agreement, the "Existing Credit Agreement")
providing, subject to the terms and conditions thereof, for, among other things,
the making of revolving credit loans and term loans to the Borrower.
(2) The Borrower desires to purchase all (100%) of the outstanding Shares
(as hereinafter defined) of LICO, Inc. ("LICO") pursuant to a stock purchase
agreement by and among the Borrower and the shareholders of LICO (the "LICO
Stock Purchase Agreement").
(3) In connection with the Borrower's proposed acquisition of all of the
Shares of LICO, the Borrower desires to make an offering of Senior Subordinated
Notes (as hereinafter defined) in the aggregate principal amount of
$200,000,000, to be used by the Borrower, together with the proceeds of loans
under this Agreement, to finance such acquisition, to pay fees and expenses, to
refinance existing indebtedness, including, without limitation, the Existing
Credit Facility, and for general corporate purposes.
(4) The Borrower has requested that the Lender Parties (as hereinafter
defined) make loans to the Borrower and issue letters of credit having an
aggregate principal and face amount at any one time outstanding of up to Three
Hundred Million Dollars ($300,000,000), to be used by the Borrower, together
with the proceeds from the offering of the Senior Subordinated Notes, (i) to
finance the acquisition of the Shares of LICO pursuant to terms and conditions
of the LICO Stock Purchase Agreement, (ii) to pay fees and expenses, (iii) to
refinance existing indebtedness, including, without limitation, the Existing
Credit Facility, and (iv) for general corporate purposes, and the Lender Parties
have agreed to make such loans and issue such letters of credit all on and
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acquisition" means the acquisition by the Borrower of all (100%) of
the Shares of LICO in accordance with the terms and conditions of the LICO Stock
Purchase Agreement.
"Acquisition Documents" means the LICO Stock Purchase Agreement and all
other instruments, agreements and documents prepared or executed and delivered
in connection therewith.
"Additional Collateral Documents" has the meaning specified in Section
5.01(m).
"Additional Cost" means, in relation to any Advance denominated in
Pounds Sterling for any Interest Period applicable to such Advance or in
relation to any overdue amount denominated in Pounds Sterling for any period
relating thereto, the cost (as calculated by the Administrative Agent) imputed
to the Lender(s) making such Advance or owed such overdue amount through a
lending office in the United Kingdom of compliance with the mandatory liquid
assets requirements, if any, of the Bank of England during such Interest Period
or period, as the case may be, expressed as a percentage rate per annum.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Fleet at its
office at Fleet National Bank, 00 Xxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000,
Account No. 0000000, Attention: Loan Administration.
"Advance" means a Revolving Credit Advance, an Alternative Currency
Revolving Credit Advance, a Swing Line Advance, a Letter of Credit Advance or an
Alternative Currency Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 50% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Alternative Currency" means with respect to Alternative Currency
Revolving Credit Sub- Commitments, Alternative Currency Revolving Credit
Advances, Alternative Currency Letter of Credit Commitments or Alternative
Currency Letters of Credit, Danish Crowns, Deutsche Marks
2
and Pounds Sterling in each case to the extent freely transferable and
convertible into U.S. Dollars.
"Alternative Currency Letter of Credit" means any Alternative Currency
Letter of Credit issued hereunder.
"Alternative Currency Letter of Credit Advance" means an advance made
by the Issuing Bank or any Revolving Credit Lender pursuant to Section 2.03(d).
"Alternative Currency Letter of Credit Agreement" has the meaning
specified in Section 2.04(d).
"Alternative Currency Letter of Credit Commitment" means, with respect
to the Issuing Bank, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Alternative Currency Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more Assignments and
Acceptances, as set forth for the Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as the Issuing Bank's
"Alternative Currency Letter of Credit Commitment," as such amount may be
reduced at or prior to such time pursuant to the terms of this Agreement.
"Alternative Currency Letter of Credit Facility" means, at any time, an
amount equal to the amount of the Issuing Bank's Alternative Currency Letter of
Credit Commitment at such time, as such amount may be reduced at or prior to
such time pursuant to the terms of this Agreement.
"Alternative Currency Note" means an Alternative Currency Revolving
Credit Note.
"Alternative Currency Notice of Issuance" has the meaning specified in
Section 2.03(d).
"Alternative Currency Revolving Credit Advance" has the meaning
specified in Section 2.01(b).
"Alternative Currency Revolving Credit Borrowing" means a Borrowing
consisting of Alternative Currency Revolving Credit Advances.
"Alternative Currency Revolving Credit Sub-Commitment" means, with
respect to any Lender, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Amount of Alternative Currency Revolving
Credit Sub-Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Alternative Currency Revolving Credit Sub-Commitment," as such amount
may be reduced at or prior to such time pursuant to the terms of this Agreement.
The Alternative Currency Revolving Credit Sub-Commitments of all the Alternative
Currency Revolving Credit Lenders equal $20,000,000 in the aggregate as of the
date hereof.
"Alternative Currency Revolving Credit Facility" has the meaning
specified in Section 2.01(b).
3
"Alternative Currency Revolving Credit Lenders" means those Lenders
providing Alternative Currency Revolving Credit Sub-Commitments hereunder and
shall include any Person which becomes a Alternative Currency Revolving Credit
Lender as contemplated by Section 8.07.
"Alternative Currency Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Alternative Currency Revolving Credit
Lender, in substantially the form of Exhibit C hereto, evidencing the aggregate
indebtedness of the Borrower to such Alternative Currency Revolving Credit
Lender resulting from the Alternative Currency Revolving Credit Advances made by
such Lender.
"Applicable Currency" means as to any particular payment or Advance,
U.S. Dollars or the Alternative Currency in which it is denominated or is
payable.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Prime Rate Advance
and such Lender Party's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means at any time and from time to time a
percentage per annum determined by reference to the ratio of Funded Debt to
EBITDA for the four full fiscal quarters preceding such determination, as set
forth below:
APPLICABLE APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR MARGIN FOR
PRIME RATE EURODOLLAR RATE COMMITMENT
RATIO OF FUNDED DEBT/EBITDA ADVANCES ADVANCES FEE
----------------------------- ---------- --------------- ----------
Equal to or greater than 4.25 0.0% 1.250% 0.275%
Equal to or greater than 3.75 0.0% 1.125% 0.250%
less than 4.25
Equal to or greater than 3.50 0.0% .875% 0.250%
less than 3.75
Equal to or greater than 3.00 0.0% .750% 0.225%
less than 3.50
Equal to or greater than 2.50 0.0% .625% 0.200%
less than 3.00
Equal to or greater than 2.00 0.0% .450% 0.150%
less than 2.50
Less than 2.00 0.0% .375% 0.125%
4
Notwithstanding the above schedule, prior to the delivery to the Administrative
Agent of the Borrower's Financial Statements for its Fiscal Year ending March
31, 1998, the Applicable Margin for a Revolving Credit Advance shall be 0.0% for
a Prime Rate Advance and 1.250% for a Eurodollar Advance and for the commitment
fee payable under Section 2.08(a) shall be 0.275%.
All Alternative Currency Revolving Credit Advances will be Eurodollar Rate
Advances, with a margin equal to that of a Revolving Credit Advance. All Swing
Line Advances will be Prime Rate Advances, with a margin equal to that of a
Revolving Credit Advance.
The Applicable Margin shall be determined by reference to the Ratio of Funded
Debt to EBITDA which shall be determined three Business Days after the date on
which the Administrative Agent receives financial statements pursuant to Section
5.03(b) or (c) and a certificate of the chief financial officer of the Borrower
demonstrating the Ratio of Funded Debt to EBITDA. If the Borrower has not
submitted to the Administrative Agent the information described above as and
when required under Section 5.03(b) or (c), as the case may be, the Applicable
Margin shall be as determined by the Administrative Agent for so long as such
information has not been received by the Administrative Agent.
"Assigned Dollar Value" means (a) in respect of any Borrowing
denominated in U.S. Dollars, the amount thereof, (b) in respect of the undrawn
amount of any Alternative Currency Letter of Credit, the Dollar Equivalent
thereof determined based upon the applicable Exchange Rate as of (i) the date of
issuance of such Letter of Credit and (ii) thereafter, (A) the last Business Day
of a month, with respect to Alternative Currency Letters of Credit the stated
amount of which is denominated in Pounds Sterling or Deutsche Marks, or (B) the
last Business Day of March, June, September or December, with respect to
Alternative Currency Letters of Credit the stated amount of which is denominated
in Danish Crowns, (c) in respect of Alternative Currency Letter of Credit
reimbursement obligations, the Dollar Equivalent thereof determined based upon
the applicable Exchange Rate as of the date such reimbursement obligation was
incurred and (d) in respect of a Borrowing denominated in an Alternative
Currency, the Dollar Equivalent thereof based upon the applicable Exchange Rate
as of the Exchange Rate Determination Date for such Borrowing; provided,
however, if, as of the end of any Interest Period in respect of such Borrowing,
the Dollar Equivalent thereof determined based upon the applicable Exchange Rate
as of the date that is five (5) Business Days before the end of such Interest
Period would be at least 5% more, or 5% less, than the "Assigned Dollar Value"
thereof, then on and after the end of such Interest Period the "Assigned Dollar
Value" of such Borrowing shall be adjusted to be the Dollar Equivalent thereof
determined based upon the Exchange Rate that gave rise to such adjustment
(subject to further adjustment in accordance with this proviso thereafter). The
Assigned Dollar Value of an Alternative Currency Revolving Credit Advance
included in any Borrowing shall equal the pro rata portion of the Assigned
Dollar Value of such Borrowing represented by such Advance.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 8.07 and in substantially the
form of Exhibit A hereto.
5
"Automatically Converted Revolving Credit Advance" has the meaning
specified in Section 2.02(b).
"Available Amount" means, (i) with respect to any Letter of Credit
issued in U.S. Dollars, the stated or face amount of such Letter of Credit to
the extent available at the time for drawing (subject to presentment of all
requisite documents) and (ii) with respect to any Alternative Currency Letter of
Credit, the Assigned Dollar Value of the stated or face amount of such Letter of
Credit to the extent available at the time for drawing (subject to presentment
of all requisite documents), in either case as the same may be increased or
decreased from time to time in accordance with the terms of such Letter of
Credit or Alternative Currency Letter of Credit, as the case may be.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Fleet National Bank at its office at 00 Xxxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000, Account No. 0000000.
"Borrowing" means a Revolving Credit Borrowing, an Alternative Currency
Revolving Credit Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in Buffalo New York; provided, however, that (i)
when used in connection with Eurodollar Rate Advances which are not Alternative
Currency Revolving Credit Advances, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in the London interbank market,
and (ii) when used in connection with Alternative Currency Revolving Credit
Advances, the term "Business Day" shall also exclude any day (A) on which
dealings in deposits in the Alternative Currency are not carried out in the
London interbank market or (B) on which commercial banks and foreign exchange
markets are not open for business in any of London, New York City and the
principal financial center for such Alternative Currency.
"Capital Expenditures" means, for any Person for any period, the sum of
all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet of
such Person.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries, free and clear of all Liens other than
Liens created under the Collateral Documents: (i) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States having a maturity of not
greater than 360 days from the date of issuance thereof, (ii) insured
certificates of deposit of or time deposits having a maturity of not greater
than 360 days from the date of issuance thereof with any commercial
6
bank that is a Lender Party or a member of the Federal Reserve System, issues
(or the parent of which issues) commercial paper rated as described in clause
(iii), is organized under the laws of the United States or any State thereof and
has combined capital and surplus of at least $1 billion or (iii) commercial
paper having a maturity of not greater than 180 days from the date of issuance
thereof in an aggregate amount of no more than $2,500,000 per issuer outstanding
at any time, issued by any corporation organized under the laws of any State of
the United States and rated at least "Prime-1" (or the then equivalent grade) by
Xxxxx'x Investors Service, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended from time to
time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental Protection
Agency.
"Closing Date" means the date on which all of the conditions precedent
set forth in Section 3.01 to the Initial Extension of Credit shall have been
satisfied or waived.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Collateral Documents" means the Security Agreement, the Intellectual
Property Security Agreement and any other agreement that creates or purports to
create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties, including, without limitation, the Collateral Documents
delivered pursuant to Section 3.01 and any and all Additional Collateral
Documents delivered pursuant to Section 5.01(m).
"Commitment" means a Revolving Credit Commitment, an Alternative
Currency Revolving Credit Sub-Commitment, a Letter of Credit Commitment or an
Alternative Currency Letter of Credit Commitment.
"Commitment Percentage" means, as to any Lender, the percentage of the
aggregate Commitments constituted by such Lender's Commitments.
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender Party in a writing
designated as confidential, but does not include any such information that is or
becomes generally available to the public other than as a result of a breach by
the Administrative Agent or any Lender Party of its obligations hereunder or
that is or becomes available to the Administrative Agent or such Lender Party
from a source other than the Borrower that is not, to the best of the
Administrative Agent's or such Lender Party's knowledge, acting in violation of
a confidentiality agreement with the Borrower; provided, further, that any
information described in Section 5.01(d) hereof shall be deemed Confidential
Information without reference to whether it was provided by the Borrower to the
Administrative Agent or was independently generated by the Administrative Agent
pursuant to such Section.
7
"Consolidated" refers to the consolidation of accounts, in accordance
with GAAP, of the Borrower and all of its Subsidiaries.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.09 or
2.10.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a company
conducting a business the same as or similar to that of such Person, after
deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
"Current Liabilities" of any Person means (i) all Debt of such Person,
except Funded Debt, that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arising under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date), (ii) all amounts of Funded Debt of such Person required to be paid
or prepaid within one year after such date and (iii) all other items (including
taxes accrued as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person.
"Danish Crowns" or "DKK" means the lawful currency of Denmark.
"Debt" of any Person means, without duplication, (i) all indebtedness
of such Person for borrowed money, (ii) all Obligations of such Person for the
deferred purchase price of property or services, (iii) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (iv)
all Obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (v) all Obligations of such Person as lessee under Capitalized
Leases, (vi) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities, (vii) all Obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment
in respect of any capital stock of or other ownership or profit interest in such
Person or any other Person or any warrants, rights or options to acquire such
capital stock, (viii) all Obligations of such Person in respect of Hedge
Agreements, (ix) all Debt of others referred to in clauses (i) through (viii)
above or clause (x) below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (w) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (x) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily for
the purpose of enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (y) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (z) otherwise to assure a creditor against loss, and (x) all Debt referred to
in clauses (i) through (ix) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts,
contract rights or inventory) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt.
8
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party to the
Borrower pursuant to Section 2.01 or 2.02 at or prior to such time which has not
been made by such Lender Party or by the Administrative Agent for the account of
such Lender Party pursuant to Section 2.02(f) as of such time. In the event that
a portion of a Defaulted Advance shall be deemed made pursuant to Section
2.15(a), the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section 2.01 on the
same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any time,
any amount required to be paid by such Lender Party to the Administrative Agent
or any other Lender Party hereunder or under any other Loan Document at or prior
to such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party to (i) the
Administrative Agent and/or the Alternative Currency Revolving Credit Lenders
pursuant to Section 2.02(b) to purchase a portion of Automatically Converted
Revolving Credit Advances made by an Alternative Currency Revolving Credit
Lender, (ii) the Swing Line Bank pursuant to Section 2.02(c) to purchase a
portion of a Swing Line Advance made by the Swing Line Bank, (iii) the Issuing
Bank pursuant to Section 2.03(c) to purchase a portion of a Letter of Credit
Advance made by the Issuing Bank, (iv) the Issuing Bank pursuant to Section
2.03(d) to purchase a portion of an Alternative Currency Letter of Credit
Advance made by the Issuing Bank, (v) the Administrative Agent pursuant to
Section 2.02(f) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender Party,
(vi) any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (vii) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to reimburse
the Administrative Agent or the Issuing Bank for such Lender Party's ratable
share of any amount required to be paid by the Lender Parties to the
Administrative Agent or the Issuing Bank as provided therein. In the event that
a portion of a Defaulted Amount shall be deemed paid pursuant to Section
2.15(b), the remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any other
Loan Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (i) owes a Defaulted Advance or a Defaulted Amount or (ii) shall take any
action or be the subject of any action or proceeding of a type described in
Section 6.01(f).
"Deutsche Marks" or "DM" means the lawful currency of the Federal
Republic of Germany.
"Disposal" means the discharge, deposit, injection, dumping, spilling,
leaking or placing of any solid waste or hazardous waste, as those terms are
defined by any applicable federal, state, local or foreign law, into or on any
land or water so that such solid waste or hazardous waste or any constituents
thereof may enter the environment or be emitted into the air or discharged into
any waters, including ground waters.
9
"Dollar Equivalent" means, on any date of determination, in relation to
an amount denominated in any Alternative Currency, the amount of U.S. Dollars
required to purchase the relevant stated amount of such Alternative Currency at
the Exchange Rate with respect to such Alternative Currency on such date.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Administrative Agent.
"Domestic Significant Subsidiary" means any Domestic Subsidiary of the
Borrower which is also a Significant Subsidiary.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States of America or any State thereof.
"EBITDA" means, for any period, (A) the sum, determined on a
Consolidated basis, of (i) net income (or net loss), (ii) interest expense,
(iii) income tax expense, (iv) depreciation expense and (v) amortization
expense, in each case of the Borrower and its Subsidiaries determined in
accordance with GAAP for such period, plus (B) the pro forma effect on EBITDA
for such period of any acquisition made by the Borrower or one of its
Subsidiaries (such pro forma effect to be reasonably acceptable to the
Administrative Agent).
"Eligible Assignee" means with respect to any portion of any Facility
(other than the Letter of Credit Facility or Alternative Currency Letter of
Credit Facility), (A) a Lender; (B) an Affiliate of a Lender; and (C) subject to
the prior approval of the Administrative Agent and the Borrower, such approval
not to be unreasonably withheld or delayed, (i) a commercial bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $500,000,000; (ii) a savings and loan association or savings
bank organized under the laws of the United States, or any State thereof, and
having total assets in excess of $500,000,000; (iii) a commercial bank organized
under the laws of any other country that is a member of the OECD or has
concluded special lending arrangements with the International Monetary Fund
associated with its General Arrangements to Borrow or of the Cayman Islands, or
a political subdivision of any such country, and having total assets in excess
of $500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (iv) the central bank of any country that is a
member of the OECD; and (v) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having total assets
in excess of $100,000,000; and, with respect to the Letter of Credit Facility or
Alternative Currency Letter of Credit Facility, a Person that is an Eligible
Assignee under subclause (i) or (iii) of clause (C) of this definition and is
approved by the Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that no Loan Party or
Affiliate of a Loan Party shall qualify as an Eligible Assignee under this
definition.
10
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to public health and
safety or the environment, including, without limitation, (i) by any
governmental or regulatory authority or third party for enforcement, cleanup,
Removal, Response, Remedial or other actions or damages and (ii) by any
governmental or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any international or transnational law,
federal, state, local or foreign statute, law, ordinance, rule, regulation,
code, order, writ, judgment, injunction, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the
environment or natural resources, including, without limitation, those relating
to the use, handling, transportation, treatment, storage, disposal, threatened
release, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under common
control with any Loan Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (i) (y) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (z) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and
an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (ii) the application for a minimum funding waiver with
respect to a Plan; (iii) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan under ERISA Section 4041(c), pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (iv) the cessation of
operations at a facility of any Loan Party or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (v) the withdrawal by any
Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan
year for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (vi) the conditions for imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (vii) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (viii) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer, such
Plan.
11
"Eurocurrency Liabilities" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (i) the rate per annum at which
deposits in the Applicable Currency are offered to Fleet by prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to Fleet's
Eurodollar Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period (or, if Fleet shall not have such a Eurodollar Rate
Advance, $1,000,000 or, if such Borrowing is made in an Alternative Currency,
the amount of such Alternative Currency for which the Dollar Equivalent is
$1,000,000) and for a period equal to such Interest Period by (ii) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest
Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii) and shall include any Alternative Currency
Revolving Credit Advance.
"Eurodollar Rate Reserve Percentage" means, for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Eurodollar Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Rate" shall mean, on any day, (a) with respect to any
Alternative Currency, the spot rate at which U.S. Dollars are offered on such
day by the Administrative Agent in London for such Alternative Currency at
approximately 11:00 A.M. (London time), and (b) with respect to U.S. Dollars in
relation to any specified Alternative Currency, the spot rate at which such
specified Alternative Currency is offered on such day by the Administrative
Agent in London for U.S. Dollars at approximately 11:00 A.M. (London time). For
purposes of determining the Exchange Rate in connection with an Alternative
Currency Revolving Credit Borrowing, such Exchange Rate shall be determined as
of the Exchange Rate Determination Date for such Borrowing. The Administrative
Agent shall provide Borrower with the then current Exchange Rate from time to
time upon Borrower's request therefor.
12
"Exchange Rate Determination Date" means, for purposes of the
determination of the Exchange Rate of any stated amount on any Business Day in
relation to any Alternative Currency Revolving Credit Borrowing, the date which
is three Business Days prior to such Borrowing.
"Existing Credit Agreement" means that certain Credit Agreement,
originally dated as of October 16, 1996, as heretofore amended, by and among the
Borrower, the lenders party thereto, and Fleet, as Initial Issuing Bank, Swing
Line Bank and Administrative Agent.
"Existing Credit Facility" means the credit facilities provided under
the Existing Credit Agreement.
"Existing Debt" means Debt of the Borrower and its Subsidiaries and
LICO and its Subsidiaries outstanding immediately before giving effect to the
Acquisition, including, without limitation, Debt under the Existing Credit
Facility.
"Existing Letters of Credit" means those certain existing Letters of
Credit issued by Fleet for the account of the Borrower which are set forth on
Schedule II hereto.
"Existing Marine Midland Letters of Credit" means those certain
existing letters of credit issued by Marine Midland in an aggregate face amount
of not more than $5,000,000 issued as security for the Borrower's obligations
under (A) that certain Series Guaranty Agreement, dated November 1, 1993, by and
between the Borrower, as guarantor, and Fleet Trust Company, as trustee,
relating to that certain Master Indenture, dated as of November 1, 1993, by and
between Town of Amherst Industrial Development Agency, as the issuer, and Fleet
Trust Company, as trustee, as supplemented by that certain Series Supplemental
Indenture, dated November 1, 1993, and (B) that certain Series Guaranty
Agreement, dated November 1, 1993, by and between the Borrower, as guarantor,
and Fleet Trust Company, as trustee, relating to that certain Master Indenture,
dated November 1, 1993, by and between the City of Cedar Rapids, Iowa, as the
issuer, and Fleet Trust Company, as trustee, as supplemented by that certain
Series Supplemental Indenture, dated November 1, 1993, in each instance as such
letters of credit may be renewed, but not increased in amount, by Marine Midland
from time to time.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business, including,
without limitation, tax refunds, pension plan reversions, proceeds of insurance
(other than proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and
payments in lieu thereof) and indemnity payments; provided, however, that an
Extraordinary Receipt shall not include cash receipts received from proceeds of
insurance, condemnation awards (or payments in lieu thereof) or indemnity
payments to the extent that such proceeds, awards or payments (i) in respect of
loss or damage to equipment, fixed assets or real property, are applied (or in
respect of which expenditures were previously incurred) to replace or repair the
equipment, fixed assets or real property in respect of which such proceeds,
awards or payments were received in accordance with the terms of the Loan
Documents, so long as (A) such application is made within ninety (90) days after
such Person's receipt of such proceeds, awards or payments and (B) such
proceeds, awards or payments are received by such Person within fifteen (15)
months after the occurrence of such damage or loss; or (ii) are received by any
Person in respect
13
of any third party claim against such Person and applied to pay (or to reimburse
such Person for its prior payment of) such claim and the costs and expenses of
such Person with respect thereto.
"Facilities" means the Revolving Credit Facility, the Alternative
Currency Revolving Credit Facility, the Letter of Credit Facility, the
Alternative Currency Letter of Credit Facility or the Swing Line Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on March 31 in any calendar year.
"Fleet" means Fleet National Bank in its capacity as a Lender or issuer
of Letters of Credit or Alternative Currency Letters of Credit hereunder.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
any jurisdiction other than the United States of America or any State thereof.
"Foreign Significant Subsidiary" means any Foreign Subsidiary of the
Borrower which is also a Significant Subsidiary.
"Funded Debt" means, with respect to the Borrower, the Advances, and
with respect to the Borrower and any other Person, all other Debt of such Person
that by its terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or arises
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year after such date,
including the current portion of all such Debt.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in the Guaranty.
"Guarantors" means (i) each Domestic Significant Subsidiary of the
Borrower, (ii) upon consummation of the Acquisition, LICO and each Domestic
Significant Subsidiary of LICO and (iii) each other Person which shall have
executed and delivered or become a party to a Guaranty hereunder.
"Guaranty" has the meaning specified in Section 3.01.
14
"Hazardous Materials" means (i) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (ii) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Hedge Bank" means the Administrative Agent or any other Lender Party
in its capacity as a party to a Hedge Agreement entered into pursuant to, and in
compliance with, the terms and conditions of Section 5.02(b)(v).
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Extension of Credit" means the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit or Alternative Currency
Letter of Credit.
"Initial Issuing Bank" means Fleet.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" has the meaning specified in
Section 3.01.
"Interest Expense" means, with respect to any Person for any period,
interest expense on all Debt of such Person for such period, whether paid or
accrued, determined on a Consolidated basis for such Person and its Subsidiaries
and in accordance with GAAP, and including, without limitation, (i) in the case
of the Borrower, interest expense in respect of Debt resulting from Advances,
(ii) the interest component of all obligations under Capitalized Leases, (iii)
commissions, discounts and other fees and charges payable in connection with
letters of credit (including, without limitation, Letters of Credit and
Alternative Currency Letters of Credit), (iv) the net payment, if any, payable
in connection with Hedge Agreements less the net credit, if any, received in
connection with Hedge Agreements and (v) all fees paid by the Borrower pursuant
to Section 2.08(a).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Prime Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than
15
11:00 A.M. (Buffalo, New York time) on the third (3rd) Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) The Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends after
any principal repayment installment date for such Facility unless,
after giving effect to such selection, the aggregate principal amount
of Prime Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall be
of the same duration;
(c) Whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(d) Whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Inventory" of any Person means all of such Person's now owned and
hereafter acquired inventory, goods, merchandise, and other personal property,
wherever located, to be furnished under any contract of service or held for sale
or lease, all returned goods, raw materials, other materials and supplies of any
kind, nature or description which are or might be consumed in such Person's
business or used in connection with the packing, shipping, advertising, selling
or finishing of such goods, merchandise and such other personal property, and
all documents of title or other documents representing them.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock or other ownership or
profit interest, warrants, rights, options, obligations or other securities of
such Person, any capital contribution to such Person or any other investment in
such Person, including, without limitation, any arrangement pursuant to which
the investor incurs Debt of the types referred to in clause (ix) or (x) of the
definition of "Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each Eligible
Assignee to which the Letter of Credit Commitment and Alternative Currency
Letter of Credit Commitment hereunder
16
has been assigned pursuant to Section 8.07; provided, however, that, with
respect to the Existing Letters of Credit, the term "Issuing Bank" means Fleet
as issuer of the Existing Letters of Credit.
"L/C Cash Collateral Account" has the meaning specified in the Security
Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(d)(ii)(A).
"Lender Party" means any Lender, the Issuing Bank or the Swing Line
Bank.
"Lenders" means the Initial Lenders, including, without limitation, the
initial Alternative Currency Revolving Credit Lenders, and each Person that
shall become a Lender hereunder pursuant to Section 8.07.
"Letter of Credit" means any Letter of Credit issued hereunder or any
Existing Letter of Credit, but does not mean or include any Alternative Currency
Letter of Credit.
"Letter of Credit Advance" means an advance made by the Issuing Bank or
any Revolving Credit Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank,
the amount set forth opposite the Issuing Bank's name on Schedule I hereto under
the caption "Letter of Credit Commitment" or, if the Issuing Bank has entered
into one or more Assignments and Acceptances, set forth for the Issuing Bank in
the Register maintained by the Administrative Agent pursuant to Section 8.07(d)
as the Issuing Bank's "Letter of Credit Commitment," as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.05 less the
aggregate Available Amount under all Existing Letters of Credit outstanding at
such time.
"LICO Stock Purchase Agreement" means the stock purchase agreement,
dated as of March 11, 1998, by and among the Borrower and the shareholders of
LICO, pursuant to which the Acquisition will be consummated.
"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means (i) this Agreement, (ii) the Notes, (iii) the
Guaranty, (iv) the Collateral Documents, (v) each Letter of Credit Agreement,
(vi) each Alternative Currency Letter of Credit Agreement, (vii) the Existing
Letters of Credit, (viii) each Hedge Agreement entered into by a Lender Party
pursuant to, and in compliance with the terms and conditions of, Section
5.02(b)(v), (ix) each document or agreement delivered pursuant to Section
5.01(m), and all other
17
agreements, instruments and documents executed in connection herewith or
therewith, in each case as the same may at any time be amended, supplemented,
restated or otherwise modified and in effect.
"Loan Parties" means the Borrower and the Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Marine Midland" means Marine Midland Bank.
"Material Adverse Change" means any material adverse change in (i) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party and its Subsidiaries (taken as a
whole), (ii) the ability of the Borrower or any Guarantor to perform its
obligations under the Loan Documents or (iii) any material aspect of any of the
Transactions.
"Material Adverse Effect" has the meaning specified in Section 3.01(e).
"Material Contract" means, with respect to any Person, each contract
listed on Schedule 4.01(dd), each contract which is a replacement or a
substitute for any contract listed on Schedule 4.01(dd) and each other contract
to which such Person is a party which is material to the business, condition
(financial or otherwise), operations, performance, properties or prospects of
such Person.
"Mechanical Products" means Mechanical Products, Inc., a Delaware
corporation.
"Minitec" means Minitec Corporation, a Delaware corporation.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (ii) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset, or any Extraordinary Receipt received by or paid
to or for the account of any Person, the aggregate amount of cash received from
time to time (whether as initial consideration or through payment or disposition
of deferred consideration) by or on behalf of such Person in connection with
such transaction after deducting therefrom only (without duplication) (i)
reasonable and customary brokerage commissions, underwriting fees and discounts,
legal fees, finder's fees and other similar fees and commissions, (ii) the
amount of taxes payable in connection with or as a result of such transaction
and (iii) the amount of any Debt (not including
18
any Debt incurred under this Agreement) secured by a Lien on such asset that, by
the terms of such transaction, is required to be repaid upon such disposition,
in each case to the extent, but only to the extent, that the amounts so deducted
are, at the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of such Person or any Loan Party or any Affiliate of any Loan Party
and are properly attributable to such transaction or to the asset that is the
subject thereof.
"Note" means a Revolving Credit Note or an Alternative Currency Note.
"Notice of Alternative Currency Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(d).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(c).
"Notice of Termination" has the meaning specified in Section 2.01(d).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(f). Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (i) the
obligation to pay principal, interest, Letter of Credit and Alternative Currency
Letter of Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party under any
Loan Document, (ii) all liabilities and other obligations arising out of, based
upon or relating to the Existing Letters of Credit, and (iii) the obligation of
any Loan Party to reimburse any amount in respect of any of the foregoing that
any Lender Party, in its sole discretion, may elect to pay or advance on behalf
of such Loan Party.
"OECD" means the Organization for Economic Cooperation and Development.
"Open Year" has the meaning specified in Section 4.01(t).
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
19
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (i) Liens for taxes, assessments and governmental charges or
levies not yet due and payable; (ii) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days; and (iii) pledges or
deposits to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity or any division
thereof, or a government or any political subdivision, agency or instrumentality
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pounds Sterling" or "(pound)" means the lawful currency of the United
Kingdom.
"Pre-Commitment Information" has the meaning specified in Section
3.01(g).
"Preferred Stock" means, with respect to any corporation, capital stock
issued by such corporation that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any distribution of such
corporation's assets, whether by dividend or upon liquidation.
"Prime Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Fleet in
Boston, Massachusetts, from time to time, as Fleet's prime rate, which
is not necessarily the lowest rate made available by Fleet; or
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Prime Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Pro Rata Share" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit Commitment at
such time and the denominator of which is the Revolving Credit Facility at such
time and, with respect to any Alternative Currency Revolving Credit Lender (in
its capacity as such) at any time, the product of such amount times a fraction
the numerator of which is the amount of such Alternative Currency Revolving
Credit Lender's Alternative Currency Revolving Credit Sub-Commitment at such
time and the denominator of which is the Alternative Currency Revolving Credit
Facility at such time.
"Receivables" of any Person means all of such Person's right, title and
interest, whether now owned or hereafter acquired, in and to all accounts,
contract rights, chattel paper,
20
instruments, deposit accounts, general intangibles and other obligations of any
kind, now or hereafter existing, whether or not arising out of or in connection
with the sale or lease of goods or the rendering of services, and all rights now
or hereafter existing in and to all security agreements, leases and other
contracts securing or otherwise relating to any such accounts, contract rights,
chattel paper, instruments, deposit accounts, general intangibles or
obligations.
"Reduction Amount" has the meaning specified in Section 2.06(b)(iv).
"Register" has the meaning specified in Section 8.07(d).
"Regulation G" means Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles containing any Hazardous
Materials) or into or from any property, including, without limitation, the
movement of any Hazardous Materials through the air, soil, surface waters or
ground water.
"Remedial" shall have the meaning as set forth in CERCLA at 42 U.S.C.
ss. 9601(24) and/or any other applicable Environmental Laws.
"Removal" shall have the meaning as set forth in CERCLA at 42 U.S.C.
ss. 9601(23) and/or any other applicable Environmental Laws.
"Required Alternative Currency Lenders" means at any time Alternative
Currency Revolving Credit Lenders owed or holding greater than 50% of the
aggregate principal amount of the Alternative Currency Revolving Credit Advances
outstanding at such time or, if no such principal amount is outstanding at such
time, Alternative Currency Revolving Credit Lenders holding greater than 50% of
the aggregate of the Alternative Currency Revolving Credit Sub-Commitments;
provided, however, that if any Alternative Currency Revolving Credit Lender
shall be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Alternative Currency Lenders at such time (i) the
aggregate principal amount of the Alternative Currency Revolving Credit Advances
owing to such Lender and outstanding at such time, and (ii) the aggregate
Alternative Currency Revolving Credit Sub-Commitment of such Lender at such
time.
"Required Lenders" means at any time Lenders owed or holding greater
than 50% of the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and (ii) the aggregate Available Amount of all Letters
of Credit and all Alternative Currency Letters of Credit outstanding at such
time, or, if no such principal amount and no Letters of Credit and no
Alternative Currency Letters of Credit are outstanding at such time, Lenders
holding greater than 50% of the aggregate of the Revolving Credit Commitments;
provided, however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination
21
of Required Lenders at such time (i) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and outstanding at
such time, and (ii) the aggregate Revolving Credit Commitment of such Lender at
such time. For purposes of this definition, the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank, Letter of Credit Advances and
Alternative Currency Letter of Credit Advances owing to the Issuing Bank and the
Available Amount of each Letter of Credit and each Alternative Currency Letter
of Credit shall be considered to be owed to the Revolving Credit Lenders ratably
in accordance with their respective Revolving Credit Commitments.
"Response" shall have the meaning as set forth in CERCLA at 42 U.S.C.
ss. 9601(25) and/or any other applicable Environmental Laws.
"Responsible Officer" means, in the case of the Borrower, any officer
and, in the case of any other Loan Party, the Chairman, Treasurer or Assistant
Treasurer of such Loan Party.
"Revolving Credit Advance" has the meaning specified in Section 2.01(a)
and shall include an Automatically Converted Revolving Credit Advance.
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the Revolving
Credit Lenders.
"Revolving Credit Commitment" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or, if such
Lender has entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Revolving Credit Commitment," as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that has a Revolving Credit
Commitment.
"Revolving Credit Note" means a promissory note of the Borrower payable
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit B hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender.
"Revolving Credit Termination Date" means the earlier of the fifth
anniversary of the Closing Date and the Termination Date.
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Administrative Agent, the Lender Parties
and the Hedge Banks and the other Persons the Obligations owing to which are or
are purported to be secured by the Collateral under the terms of the Collateral
Documents.
22
"Security Agreement" has the meaning specified in Section 3.01(a).
"Senior Subordinated Note Documents" means the Senior Subordinated Note
Indenture, Senior Subordinated Notes and all other documents, instruments and
agreements executed and delivered in connection with the original issuance of
the Senior Subordinated Notes, in each case, as the same shall, subject to the
terms and conditions of this Agreement, be amended, supplemented or otherwise
modified and in effect from time to time.
"Senior Subordinated Note Indenture" means the indenture, dated as of
March 31, 1998, between the Borrower, as issuer, and State Street Bank and Trust
Company, N.A., as trustee, as the same shall, subject to the terms and
conditions of this Agreement, be amended, supplemented or otherwise modified and
in effect from time to time.
"Senior Subordinated Notes" means the Borrower's 8 1/2% senior
subordinated notes due 2008 issued pursuant to the Senior Subordinated Note
Indenture, as the same shall, subject to the terms and conditions of this
Agreement, be amended, supplemented or otherwise modified and in effect from
time to time.
"Shares" means the shares of Common Stock, par value $.01 per share, of
LICO.
"Significant Subsidiary" means each Loan Party and any other Subsidiary
of the Borrower which (i) for the most recent Fiscal Year of the Borrower
accounted for more than 5% of the Consolidated revenues of the Borrower, or (ii)
as of the end of such Fiscal Year was the owner of more than 5% of the
Consolidated assets of the Borrower, all as shown on the Consolidated financial
statements of the Borrower for such fiscal year.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of any Loan
Party or any ERISA Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (ii) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (i) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the present fair
salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts as they
become absolute and matured, (iii) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (iv) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit or Alternative
Currency Letter of Credit other than a Trade Letter of Credit.
23
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (i) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (ii) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (iii) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries.
"Surviving Debt" shall have the meaning specified in Section 3.01(c).
"Swing Line Advance" means an advance made by (x) the Swing Line Bank
pursuant to Section 2.01(c) or (y) any Revolving Credit Lender pursuant to
Section 2.02(c).
"Swing Line Bank" means Fleet.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section 2.01(c).
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the date of termination in whole of the
Commitments pursuant to Section 2.05 or 6.01.
"Trade Letter of Credit" means any Letter of Credit or Alternative
Currency Letter of Credit that is issued for the benefit of a supplier of
Inventory to the Borrower or any of its Subsidiaries to effect payment for such
Inventory, the conditions to drawing under which include the presentation to the
Issuing Bank of negotiable bills of lading, invoices and related documents
sufficient, in the judgment of the Issuing Bank, to create a valid and perfected
lien on or security interest in such Inventory, bills of lading, invoices and
related documents in favor of the Issuing Bank.
"Transactions" means the transactions contemplated by the Acquisition,
the Senior Subordinated Note Documents and the Loan Documents.
"Type" refers to the distinction between Advances bearing interest at
the Prime Rate and Advances bearing interest at the Eurodollar Rate.
"Univeyor" means Univeyor A/S, a corporation organized and existing
under the laws of Denmark and a direct or indirect wholly-owned Subsidiary of
the Borrower.
"Unused Alternative Currency Revolving Credit Sub-Commitment" means, as
to any Alternative Currency Revolving Credit Lender at any time, an amount in
U.S. Dollars equal to (i) such Lender's Alternative Currency Revolving Credit
Sub-Commitment minus (ii) the sum of
24
(x) the aggregate Assigned Dollar Value of all Alternative Currency Revolving
Credit Advances made by such Lender (in its capacity as an Alternative Currency
Revolving Credit Lender) and outstanding at such time, plus (y) such Lender's
Pro Rata Share of (1) the aggregate Assigned Dollar Value of all Alternative
Currency Revolving Credit Advances made by the Alternative Currency Revolving
Credit Lenders (other than such Lender) and outstanding at such time, (2) the
aggregate Available Amount of all Alternative Currency Letters of Credit
outstanding at such time and (3) the aggregate Assigned Dollar Value of all
Alternative Currency Letter of Credit Advances made by the Issuing Bank pursuant
to Section 2.03(d) and outstanding at such time.
"Unused Revolving Credit Commitment" means, with respect to any Lender
at any time, (i) such Lender's Revolving Credit Commitment at such time minus
(ii) the sum of (x) the aggregate principal amount of all Revolving Credit
Advances, all Swing Line Advances, all Letter of Credit Advances, the Assigned
Dollar Value of all Alternative Currency Letter of Credit Advances and the
Assigned Dollar Value of all Alternative Currency Revolving Credit Advances, in
each instance made by such Lender (in its capacity as a Lender) and outstanding
at such time, plus (y) such Lender's Pro Rata Share of (1) the aggregate
Assigned Dollar Value of all Alternative Currency Revolving Credit Advances made
by the Alternative Currency Revolving Credit Lenders (other than such Lender)
and outstanding at such time, (2) the aggregate Available Amount of all Letters
of Credit, including, without limitation, Existing Letters of Credit,
outstanding at such time, (3) the aggregate Available Amount of all Alternative
Currency Letters of Credit outstanding at such time, (4) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing Bank pursuant to
Section 2.03(c) and outstanding at such time, (5) the aggregate Assigned Dollar
Value of all Alternative Currency Letter of Credit Advances made by the Issuing
Bank pursuant to Section 2.03(d) and outstanding at such time, and (6) the
aggregate principal amount of all Swing Line Advances made by the Swing Line
Bank pursuant to Section 2.01(c) and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of which
any Loan Party could have liability.
"Withdrawal Liabilities" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"Yale Germany" means Yale Industrial Products GmbH, a corporation
organized and existing under the laws of Germany and a direct or indirect
wholly-owned Subsidiary of the Borrower.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
25
SECTION 1.03. Accounting Terms. All accounting terms used in any of the
financial covenants set forth in Section 5.04, and all other accounting terms
not specifically defined herein, shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f)(ii) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES,
THE LETTERS OF CREDIT AND ALTERNATIVE
CURRENCY LETTERS OF CREDIT
SECTION 2.01. The Advances.
(a) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Revolving Credit Advance") to the Borrower from time to time
on any Business Day during the period from the date hereof until the Revolving
Credit Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time. Each Revolving Credit
Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances,
outstanding Letter of Credit Advances or outstanding Alternative Currency Letter
of Credit Advances) and shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Revolving Credit
Lender's Unused Revolving Credit Commitment in effect from time to time, the
Borrower may borrow, repay and reborrow.
(b) The Alternative Currency Revolving Credit Advances. Each
Alternative Currency Revolving Credit Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances denominated in an Alternative
Currency ("Alternative Currency Revolving Credit Advances") to the Borrower from
time to time on any Business Day during the period from the date hereof until
the Revolving Credit Termination Date in an amount for each such Advance not to
exceed the Assigned Dollar Value of such Lender's Unused Alternative Currency
Revolving Credit Sub-Commitment at such time; provided, however, that the
aggregate amount of all Alternative Currency Revolving Credit Advances at any
time outstanding shall not at any time exceed the Assigned Dollar Value of
$20,000,000 (the "Alternative Currency Revolving Credit Facility"), and,
provided, further, that the aggregate amount of an Alternative Currency
Revolving Credit Borrowing shall in no event exceed the aggregate of the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. Each
Alternative Currency Revolving Credit Borrowing (other than, in the case of a
continuation of a Eurodollar Rate Advance, a change in the Assigned Dollar Value
thereof solely as a result of currency fluctuations) shall be in an aggregate
amount of the Applicable Currency which would purchase approximately two million
dollars ($2,000,000) or an integral multiple of one million dollars ($1,000,000)
in excess thereof based on the exchange rate as published in the Wall Street
Journal (or if such rate is not available, the spot rate quoted by the
Administrative Agent on such date)
26
with respect to such currency on the date of the applicable Notice of
Alternative Currency Borrowing or, if less, the then Dollar Equivalent amount of
the aggregate Unused Alternative Currency Revolving Credit Sub-Commitments. Each
Alternative Currency Revolving Credit Borrowing shall consist of Alternative
Currency Revolving Credit Advances made simultaneously by the Alternative
Currency Revolving Credit Lenders ratably according to their Alternative
Currency Revolving Credit Sub-Commitments. Within the limits of each Alternative
Currency Revolving Credit Lender's Unused Alternative Currency Revolving Credit
Sub-Commitment in effect from time to time, the Borrower may borrow, repay and
reborrow.
(c) The Swing Line Advances. The Borrower may request the Swing Line
Bank to make, and the Swing Line Bank may, if in its discretion it elects to do
so, make, on the terms and conditions hereinafter set forth, Swing Line Advances
to the Borrower from time to time on any Business Day during the period from the
date hereof until the Revolving Credit Termination Date (i) in an aggregate
amount not to exceed at any time outstanding $15,000,000 (the "Swing Line
Facility") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be made as a Prime Rate Advance. Within the limits of the
Swing Line Facility and within the limits referred to in clause (ii) above, so
long as the Swing Line Bank, in its discretion, elects to make Swing Line
Advances, the Borrower may borrow and reborrow under this Section 2.01(c) and
may repay or prepay the Swing Line Advances at such times prior to the Revolving
Credit Termination Date, and in such integral multiples, as the Borrower may
elect.
(d) Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue Letters of Credit for the account of
the Borrower from time to time on any Business Day during the period from the
Closing Date until sixty (60) days before the Revolving Credit Termination Date
(A) in an aggregate Available Amount for all Letters of Credit, including,
without limitation, Existing Letters of Credit, not to exceed at any time the
Issuing Bank's Letter of Credit Commitment at such time and (B) in an Available
Amount for each such Letter of Credit not to exceed an amount equal to the
Unused Revolving Credit Commitments of the Revolving Credit Lenders at such
time. No Letter of Credit shall have an expiration date (including all rights of
the Borrower or the beneficiary to require renewal) later than the earliest of
(A) 60 days before the Revolving Credit Termination Date, (B) in the case of a
Standby Letter of Credit, 365 days after the date of issuance thereof and (C) in
the case of a Trade Letter of Credit, 180 days after the date of issuance
thereof. The foregoing notwithstanding, any Standby Letter of Credit may, by its
terms, be renewable annually upon notice (a "Notice of Renewal") given to the
Issuing Bank and the Administrative Agent on or prior to any date for notice of
renewal set forth in such Letter of Credit (but in any event at least five (5)
Business Days prior to the date of the proposed renewal of such Standby Letter
of Credit) and upon fulfillment of the applicable conditions set forth in
Article III unless such Issuing Bank shall have notified the Borrower (with a
copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit (but in any event at least thirty
(30) Business Days prior to the date of automatic renewal) of its election not
to renew such Standby Letter of Credit (a "Notice of Termination"); provided
that the terms of each Standby Letter of Credit that is automatically renewable
annually shall not permit the expiration date (after giving effect to any
renewal) of such Standby Letter of Credit in any event to be extended to a date
later
27
than sixty (60) days before the Revolving Credit Termination Date. If either a
Notice of Renewal is not given by the Borrower or a Notice of Termination is
given by the Issuing Bank pursuant to the immediately preceding sentence, such
Standby Letter of Credit shall expire on the date on which it otherwise would
have been automatically renewed; provided, however, that even in the absence of
receipt of a Notice of Renewal, the Issuing Bank may, in its discretion unless
instructed to the contrary by the Administrative Agent or the Borrower, deem
that a Notice of Renewal had been timely delivered and, in such case, a Notice
of Renewal shall be deemed to have been so delivered for all purposes under this
Agreement. Within the limits of the Letter of Credit Facility, and subject to
the limits referred to above, the Borrower may request the issuance of Letters
of Credit under this Section 2.01(d), repay any Letter of Credit Advances
resulting from drawings under Letters of Credit pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(d).
(e) Alternative Currency Letters of Credit. The Issuing Bank agrees, on
the terms and subject to the conditions set forth in this Agreement, to issue
Alternative Currency Letters of Credit for the account of the Borrower from time
to time on any Business Day during the period from the Closing Date until sixty
(60) days before the Revolving Credit Termination Date (A) in an aggregate
Available Amount for all Alternative Currency Letters of Credit not to exceed at
any time the Issuing Bank's Alternative Currency Letter of Credit Commitment at
such time and (B) in an Available Amount for each such Alternative Currency
Letter of Credit (i) not to exceed an amount equal to the Unused Alternative
Currency Revolving Credit Sub-Commitments of the Alternative Currency Revolving
Credit Lenders at such time and (ii) not to exceed an amount equal to the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Alternative Currency Letter of Credit shall have an expiration date (including
all rights of the Borrower or the beneficiary to require renewal) later than the
earliest of (A) 60 days before the Revolving Credit Termination Date, (B) in the
case of a Standby Letter of Credit, 365 days after the date of issuance thereof
and (C) in the case of a Trade Letter of Credit, 180 days after the date of
issuance thereof. Within the limits of the Alternative Currency Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Alternative Currency Letters of Credit under this Section
2.01(e), repay any Alternative Currency Letter of Credit Advances resulting from
drawings under Alternative Currency Letters of Credit pursuant to Section
2.03(d) and request the issuance of additional Alternative Currency Letters of
Credit under this Section 2.01(e).
SECTION 2.02. Making the Advances. (a) Each Revolving Credit Borrowing
shall be made on notice, given not later than 11:00 A.M. (Buffalo, New York
time) on the third Business Day prior to the date of the proposed Borrowing in
the case of a Borrowing consisting of Eurodollar Rate Advances, or the second
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Prime Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each appropriate Lender prompt notice
thereof by telex or telecopier. Each such notice of a Revolving Credit Borrowing
(a "Notice of Borrowing") may be by telephone, confirmed immediately in writing,
or telex or telecopier in substantially the form of Exhibit D hereto, specifying
therein the requested (i) date of such Borrowing, (ii) Type of Advances
comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Lender shall, before 11:00 A.M. (Buffalo, New
York time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the
28
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Revolving Credit Commitments of such Lender and the other Lenders.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower by crediting the Borrower's
Account; provided, however, that the Administrative Agent shall first make a
portion of such funds equal to the aggregate principal amount of any Swing Line
Advances, Letter of Credit Advances and Alternative Currency Letter of Credit
Advances made by the Swing Line Bank, the Issuing Bank and any other Revolving
Credit Lender and outstanding on the date of such Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to the Swing Line
Bank, the Issuing Bank and such other Revolving Credit Lenders for repayment of
such Swing Line Advances, Letter of Credit Advances and Alternative Currency
Letter of Credit Advances.
(b) (i) Each Alternative Currency Revolving Credit Borrowing shall be
made on notice, given not later than 11:00 A.M. (Buffalo, New York time) on the
fifth Business Day prior to the date of the proposed Borrowing, by the Borrower
to the Administrative Agent, which shall give to each Alternative Currency
Revolving Credit Lender prompt notice thereof by telex or telecopier. Each such
notice of an Alternative Currency Revolving Credit Borrowing (a "Notice of
Alternative Currency Borrowing") may be by telephone, confirmed immediately in
writing, or telex or telecopier in substantially the form of Exhibit E hereto,
specifying therein the requested (i) date of such Alternative Currency Revolving
Credit Borrowing, (ii) Applicable Currency, (iii) aggregate amount of such
Alternative Currency Revolving Credit Borrowing and (iv) initial Interest Period
for each such Alternative Currency Revolving Credit Advance (it being understood
by the Borrower and Alternative Currency Revolving Credit Lenders that all
Alternative Currency Revolving Credit Advances shall be Eurodollar Rate
Advances). Each Alternative Currency Revolving Credit Lender shall, before 11:00
A.M. (local time at the place of payment) on the date of such Borrowing, make
available to the Administrative Agent at such account at such bank or office in
London or the principal financial center in the country of the Applicable
Currency as the Administrative Agent shall have designated by written notice to
such Lender, in same day funds, such Alternative Currency Revolving Credit
Lender's ratable portion of such Borrowing in accordance with the respective
Alternative Currency Revolving Credit Sub-Commitments of such Alternative
Currency Revolving Credit Lender and the other Alternative Currency Revolving
Credit Lenders. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by wire
transfer to such account as the Borrower shall have previously designated to the
Administrative Agent in writing, which account must be in the name of the
Borrower or a Subsidiary of the Borrower and in London or the financial center
of the country of the Applicable Currency.
(ii) Upon the occurrence and during the continuance of any Default or
Event of Default or at any other time that the Administrative Agent may in its
reasonable discretion so determine, the Administrative Agent may, and, in the
case of the occurrence and continuance of a Default or Event or Default, shall
at the direction of the Required Alternative Currency Lenders, terminate the
Alternative Currency Revolving Credit Facility by giving notice of such
termination to the Borrower, each of the Alternative Currency Revolving Credit
Lenders and each of the other Revolving Credit Lenders. Thereupon, (A) any and
all then outstanding
29
Alternative Currency Revolving Credit Advances shall automatically be converted
into Revolving Credit Advances denominated in U.S. Dollars (in an amount equal
to the Dollar Equivalent thereof) (the "Automatically Converted Revolving Credit
Advances"), (B) no further Alternative Currency Revolving Credit Advances shall
be permitted to be made and (C) the Alternative Currency Revolving Credit
Sub-Commitments of the Alternative Currency Revolving Credit Lenders shall be
automatically terminated. In addition, at such time the Revolving Credit Lenders
shall purchase from the Alternative Currency Revolving Credit Lenders, and the
Alternative Currency Revolving Credit Lenders shall sell and assign to the
Revolving Credit Lenders, Automatically Converted Revolving Credit Advances in
an amount so that each and every Revolving Credit Lender shall have a share of
the total Automatically Converted Revolving Credit Advances equal to its Pro
Rata Share of the aggregate Revolving Credit Commitments. The Administrative
Agent shall specify the amounts required to effect such purchases and sales
among the Revolving Credit Lenders. The Borrower hereby agrees to each such sale
and assignment. Each Revolving Credit Lender agrees to purchase its Pro Rata
Share of Automatically Converted Revolving Credit Advances on (i) the Business
Day on which demand therefor is made, provided that notice of such demand is
given not later than 11:00 A.M. (Buffalo, New York time) on such Business Day,
or (ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by an Alternative
Currency Revolving Credit Lender to Revolving Credit Lenders of a portion of the
Automatically Converted Revolving Credit Advances, such Alternative Currency
Revolving Credit Lender represents and warrants to such other Lenders that such
Alternative Currency Revolving Credit Lender is the legal and beneficial owner
of the interest being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to any of the Automatically
Converted Revolving Credit Advances, any of the Loan Documents, the Borrower or
any Loan Party (including, without limitation, as to the financial condition of
the Borrower or any Loan Party). The occurrence of any event which results in
the existence of Automatically Converted Revolving Credit Advances pursuant to
the foregoing shall be deemed to constitute, for all purposes of this Agreement,
a prepayment of all of the Alternative Currency Revolving Credit Advances so
automatically converted into Automatically Converted Revolving Credit Advances
before the last day of the Interest Period relating thereto.
(c) Each Swing Line Borrowing shall be made either (x) on notice, given
not later than 11:00 A.M. (Buffalo, New York time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent or (y) pursuant to other arrangements, including, by way of
example and not of limitation, arrangements for daily repayments and borrowings
on each Business Day, which are satisfactory in form and substance to the Swing
Line Bank, the Administrative Agent and the Borrower. Each notice of a Swing
Line Borrowing pursuant to clause (x) in the immediately preceding sentence (a
"Notice of Swing Line Borrowing") shall be by telephone, confirmed immediately
in writing, or telex or telecopier, specifying therein the requested (i) date of
such Borrowing, (ii) amount of such Borrowing and (iii) maturity of such
Borrowing (which maturity shall be no later than the seventh day after the
requested date of such Borrowing). If, in its discretion, it elects to make a
requested Swing Line Advance, the Swing Line Bank will make the amount thereof
available to the Administrative Agent at the Administrative Agent's Account, in
same day funds. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by crediting
the Borrower's Account. Upon written demand by the Swing Line Bank, with a copy
of such
30
demand to the Administrative Agent, each other Revolving Credit Lender shall
purchase from the Swing Line Bank, and the Swing Line Bank shall sell and assign
to each such other Lender, such other Lender's Pro Rata Share of all outstanding
Swing Line Advances as of the date of such demand, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of the Swing Line Bank, by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of Swing Line Advances to be purchased by such Lender. The
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of outstanding Swing Line Advances
on (i) the Business Day on which demand therefor is made by the Swing Line Bank,
provided that notice of such demand is given not later than 11:00 A.M. (Buffalo,
New York time) on such Business Day, or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Swing Line Bank to any other Revolving Credit Lender
of a portion of a Swing Line Advance, the Swing Line Bank represents and
warrants to such other Lender that the Swing Line Bank is the legal and
beneficial owner of such interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent
that any Revolving Credit Lender shall not have so made the amount of such Swing
Line Advance available to the Administrative Agent, such Lender agrees to pay to
the Administrative Agent, for the account of the Swing Line Bank, forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by the Swing Line Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such amount for the account of the Swing Line Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Swing Line Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line Advance made
by the Swing Line Bank shall be reduced by such amount on such Business Day.
(d) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances if the obligation of
the appropriate Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.09 or Section 2.10, and (ii) Revolving Credit Advances
made on any date may not be outstanding as part of more than ten (10) separate
Borrowings.
(e) Each Notice of Borrowing, Notice of Alternative Currency Borrowing
and Notice of Swing Line Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, and in the case of any
Alternative Currency Revolving Credit Borrowing, the Borrower shall indemnify
each appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing or Notice of Alternative Currency Borrowing, as the
case may be, for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (including loss of anticipated
profits as reasonably determined by such Lender), cost or expense incurred by
reason of the liquidation or redeployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
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(f) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a), (b) or (c) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(g) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit.
(a) Request for Issuance. Each Letter of Credit which is not an
Existing Letter of Credit shall be issued upon notice, given not later than
11:00 A.M. (Buffalo, New York time) on the fifth (5th) Business Day prior to the
date of the proposed issuance of such Letter of Credit, by the Borrower to the
Issuing Bank, which shall give to the Administrative Agent and each Revolving
Credit Lender prompt notice thereof by telex or telecopier. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be by telephone,
confirmed immedi-
ately in writing, or telex or telecopier, specifying therein the requested (i)
date of such issuance (which shall be a Business Day), (ii) Available Amount of
such Letter of Credit, (iii) expiration date of such Letter of Credit, (iv) name
and address of the beneficiary of such Letter of Credit and (v) form of such
Letter of Credit, and shall be accompanied by such application and agreement for
letter of credit as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to the
Issuing Bank, in its sole discretion, the Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any such Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (i) to the
Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such
32
week under all Letters of Credit, including, without limitation, drawings under
Existing Letters of Credit, (ii) to the Administrative Agent, the Borrower and
each Revolving Credit Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit issued
during the preceding month and drawings during such month under all Letters of
Credit, including, without limitation, drawings under Existing Letters of
Credit, and (iii) to the Administrative Agent, the Borrower and each Revolving
Credit Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit, including, without
limitation, all Existing Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit, including, without limitation, under any
Existing Letter of Credit, shall constitute for all purposes of this Agreement
the making by the Issuing Bank of a Letter of Credit Advance which shall be a
Prime Rate Advance, in the amount of such draft. Each of the Borrower, the
Administrative Agent and each Revolving Credit Lender hereby acknowledges and
agrees that Letter of Credit Advances may be made, or deemed made, by the
Issuing Bank in respect of Existing Letters of Credit or any other Letter of
Credit and to participate in all Letter of Credit Advances made hereunder as
provided herein. Upon written demand by the Issuing Bank, with a copy of such
demand to the Administrative Agent, each Revolving Credit Lender shall purchase
from the Issuing Bank, and the Issuing Bank shall sell and assign to each such
Revolving Credit Lender such Lender's Pro Rata Share of such outstanding Letter
of Credit Advance as of the date of such purchase, by making available (for the
account of its Applicable Lending Office) to the Administrative Agent (for the
account of the Issuing Bank), by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender. Promptly
after receipt thereof, the Administrative Agent shall transfer such funds to the
Issuing Bank. The Borrower hereby agrees to each such sale and assignment. Each
Revolving Credit Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank, provided notice of such demand is given not later than
11:00 A.M. (Buffalo, New York time) on such Business Day or (ii) the first
Business Day next succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by the Issuing Bank to any other Revolving
Credit Lender of a portion of a Letter of Credit Advance, the Issuing Bank
represents and warrants to such other Lender that the Issuing Bank is the legal
and beneficial owner of such interest being assigned by it, free and clear of
any liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan
Documents, the Borrower or any other Loan Party. If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Revolving Credit
Lender agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Issuing Bank until the date such amount is paid to the Administrative Agent, at
the Federal Funds Rate for its account or the account of the Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent such amount for
the account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by the Issuing Bank shall
be reduced by such amount on such Business Day.
33
(d) Alternative Currency Letters of Credit. (i) Each Alternative
Currency Letter of Credit may, in the sole discretion of the Issuing Bank, be
issued upon notice, given not later than 11:00 A.M. (Buffalo, New York time) on
the tenth (10th) Business Day prior to the date of the proposed issuance of such
Alternative Currency Letter of Credit, by the Borrower to the Issuing Bank,
which shall give to the Administrative Agent, each Alternative Currency
Revolving Credit Lender and each other Revolving Credit Lender prompt notice
thereof by telex or telecopier. Each such notice of issuance of an Alternative
Currency Letter of Credit (an "Alternative Currency Notice of Issuance") shall
be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of issuance (which shall be a Business
Day), (ii) Available Amount of such Alternative Currency Letter of Credit, (iii)
Applicable Currency, (iv) expiration date of such Alternative Currency Letter of
Credit, (v) name and address of the beneficiary of such Alternative Currency
Letter of Credit and (vi) form of such Alternative Currency Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as the Issuing Bank may specify to the Borrower for use in connection with such
requested Alternative Currency Letter of Credit (an "Alternative Currency Letter
of Credit Agreement"). If the requested form of such Alternative Currency Letter
of Credit is acceptable to the Issuing Bank, in its sole discretion, the Issuing
Bank may, in its sole discretion, upon fulfillment of the applicable conditions
set forth in Article III, make such Alternative Currency Letter of Credit
available to the Borrower as agreed between the Issuing Bank and the Borrower in
connection with such issuance, provided, that, such Alternative Currency Letter
of Credit shall in any event be made available to the Borrower or as the
Borrower may direct in London or the financial center of the country of the
Applicable Currency. In the event and to the extent that the provisions of any
such Alternative Currency Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(ii) The Issuing Bank shall furnish (i) to the Administrative
Agent on the first Business Day of each week a written report summarizing
issuance and expiration dates of Alternative Currency Letters of Credit issued
during the previous week and drawings during such week under all Alternative
Currency Letters of Credit, (ii) to the Administrative Agent, the Borrower, each
Alternative Currency Revolving Credit Lender and each other Revolving Credit
Lender on the first Business Day of each month a written report summarizing
issuance and expiration dates of Alternative Currency Letters of Credit issued
during the preceding month and drawings during such month under all Alternative
Currency Letters of Credit and (iii) to the Administrative Agent, the Borrower,
each Alternative Currency Revolving Credit Lender and each other Revolving
Credit Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Alternative Currency Letters of Credit.
(iii) The payment by the Issuing Bank of a draft drawn under
any Alternative Currency Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of an Alternative Currency Letter
of Credit Advance which shall be a Prime Rate Advance, shall be denominated in
U.S. Dollars and shall for all purposes of this Agreement be treated the same as
a Revolving Credit Advance made as a Prime Rate Advance, in the amount of such
draft, the amount of such Alternative Currency Letter of Credit Advance to be
determined by the Administration Agent based on the Dollar Equivalent of such
draft. Each of the Borrower, the Administrative Agent, each Alternative Currency
Revolving Credit Lender and each other Revolving Credit Lender hereby
acknowledges and agrees that such Alternative Currency Letter
34
of Credit Advances may be made, or deemed made, by the Issuing Bank in respect
of such Alternative Currency Letters of Credit and to participate in all
Alternative Currency Letter of Credit Advances made hereunder as provided
herein. Upon written demand by the Issuing Bank, with a copy of such demand to
the Administrative Agent, each Revolving Credit Lender shall purchase from the
Issuing Bank, and the Issuing Bank shall sell and assign to each Revolving
Credit Lender, such Lender's Pro Rata Share of each outstanding Alternative
Currency Letter of Credit Advance as of the date of such purchase, by making
available (for the account of its Applicable Lending Office) to the
Administrative Agent (for the account of the Issuing Bank), by deposit to the
Administrative Agent's Account, in same day funds in U.S. Dollars, an amount
equal to the portion of the outstanding principal amount of such Alternative
Currency Letter of Credit Advance to be purchased by such Lender. Promptly after
receipt thereof, the Administrative Agent shall transfer such funds to the
Issuing Bank. The Borrower hereby agrees to each such sale and assignment. Each
Revolving Credit Lender agrees to purchase its Pro Rata Share of an outstanding
Alternative Currency Letter of Credit Advance on (i) the Business Day on which
demand therefor is made by the Issuing Bank, provided notice of such demand is
given not later than 11:00 A.M. (Buffalo, New York time) on such Business Day or
(ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. Upon any such assignment by the Issuing Bank to any
Revolving Credit Lender of a portion of an Alternative Currency Letter of Credit
Advance, the Issuing Bank represents and warrants to such Lender that the
Issuing Bank is the legal and beneficial owner of such interest being assigned
by it, free and clear of any liens, but makes no other representation or
warranty and assumes no responsibility with respect to such Alternative Currency
Letter of Credit Advance, the Loan Documents, the Borrower or any other Loan
Party. If and to the extent that any Revolving Credit Lender shall not have so
made the amount of such Alternative Currency Letter of Credit Advance available
to the Administrative Agent, such Alternative Currency Revolving Credit Lender
agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Issuing Bank until the date such amount is paid to the Administrative Agent, at
the Federal Funds Rate for its account or the account of the Issuing Bank, as
applicable. If such Lender shall pay to the Administrative Agent such amount for
the account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute an Alternative Currency Letter of Credit
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Alternative Currency Letter of
Credit Advance made by the Issuing Bank shall be reduced by such amount on such
Business Day.
(e) Failure to Make Letter of Credit Advances or Alternative Currency
Letter of Credit Advances. The failure of any Lender to make any Letter of
Credit Advance or Alternative Currency Letter of Credit Advance to be made by it
on the date specified in Section 2.03(c) or (d), as applicable, shall not
relieve any other Lender of its obligation hereunder to make its Letter of
Credit Advance or Alternative Currency Letter of Credit Advance, as the case may
be, on such date, but no Lender shall be responsible for the failure of any
other Lender to make the Letter of Credit Advance or Alternative Currency Letter
of Credit Advance, as the case may be, to be made by such other Lender on such
date.
35
SECTION 2.04. Repayment of Advances.
(a) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Revolving Credit Termination Date the aggregate outstanding principal amount
of the Revolving Credit Advances then outstanding.
(b) Alternative Currency Revolving Credit Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Alternative
Currency Revolving Credit Lenders on the Revolving Credit Termination Date the
aggregate outstanding principal amount of the Alternative Currency Revolving
Credit Advances then outstanding.
(c) Swing Line Advances. The Borrower shall repay to the Administrative
Agent for the account of the Swing Line Bank and each other Revolving Credit
Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them on the earlier of the maturity date
for such Swing Line Advance and the Revolving Credit Termination Date.
(d) Letter of Credit Advances and Alternative Currency Letter of Credit
Advances. (i) The Borrower shall repay to the Administrative Agent for the
account of the Issuing Bank and each other Revolving Credit Lender that has made
a Letter of Credit Advance or an Alternative Currency Letter of Credit Advance,
on the earlier of demand and the Revolving Credit Termination Date the
outstanding principal amount of each Letter of Credit Advance and each
Alternative Currency Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement, any Alternative Currency Letter of Credit Agreement
and any other agreement or instrument relating to any Letter of Credit,
including, without limitation, any Existing Letter of Credit, or any Alternative
Currency Letter of Credit, shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement, such Letter of
Credit Agreement, such Alternative Currency Letter of Credit Agreement and such
other agreement or instrument under all circumstances, including, without
limitation, the following circumstances:
(A) any lack of validity or enforceability of any
Loan Document, any Letter of Credit Agreement, any Alternative Currency
Letter of Credit Agreement, any Letter of Credit, including, without
limitation, any Existing Letter of Credit, any Alternative Currency
Letter of Credit or any other agreement or instrument relating to any
of the foregoing (all of the foregoing being, collectively, the "L/C
Related Documents");
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations of
the Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;
(C) the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of
36
Credit or an Alternative Currency Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented
under a Letter of Credit or an Alternative Currency Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect; or
(E) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or waiver
of or consent to departure from any Guaranty or any other guarantee,
for all or any of the Obligations of the Borrower in respect of the L/C
Related Documents.
SECTION 2.05. Termination or Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least three Business Days'
notice to the Administrative Agent, terminate in whole or reduce in part the
unused portions of the Letter of Credit Facility and the Unused Revolving Credit
Commitments; provided, however, that each partial reduction of a Facility (i)
shall be in an aggregate amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof, and (ii) shall be made ratably among the
appropriate Lenders in accordance with their Commitments with respect to such
Facility.
(b) Mandatory. (i) The Revolving Credit Facility shall be automatically
and permanently reduced on the third anniversary of the Closing Date, by
$25,000,000, and on the fourth anniversary of the Closing Date, by an additional
$25,000,000, each such reduction to be made ratably among the Revolving Credit
Lenders in accordance with their Revolving Credit Commitments.
(ii) The Revolving Credit Facility shall be automatically and
permanently reduced on each date on which prepayment thereof is required to be
made pursuant to Section 2.06(b)(ii) or (iii) in an amount equal to the
applicable Reduction Amount, each such reduction to be made ratably among the
Revolving Credit Lenders in accordance with their Commitments, provided,
however, that, notwithstanding the foregoing, in the case of a sale, lease,
transfer or other disposition of all of the capital stock of, or all or
substantially all of the assets of, Minitec and/or Mechanical Products, after
prepayment of the Advances in accordance with Section 2.06(b), there shall be no
permanent reduction of the Revolving Credit Facility.
(iii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
(iv) In the event that the Closing Date shall not have
occurred by April 30, 1998, then all of the Commitments shall be automatically
terminated and this Agreement shall be of no further force or effect.
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SECTION 2.06. Prepayments.
(a) Optional. The Borrower may, upon at least one (1) Business Day's
notice in the case of Prime Rate Advances and three (3) Business Days' notice in
the case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, permanently prepay the outstanding
aggregate principal amount of the Advances, in whole or ratably in part,
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that (i) each such partial
prepayment shall be in an aggregate principal amount of $10,000,000 or an
integral multiple of $5,000,000 in excess thereof and (ii) no such prepayment of
a Eurodollar Rate Advance shall be made other than on the last day of an
Interest Period therefor. Each permanent prepayment made pursuant to this
Section 2.06(a) shall be applied to repay the Facilities in the following
manner: first, to prepay Letter of Credit Advances then outstanding until such
Advances are paid in full; second, to prepay Alternative Currency Letter of
Credit Advances then outstanding until such Advances are paid in full; third, to
prepay Swing Line Advances then outstanding until such Advances are paid in
full; fourth, to prepay Alternative Currency Revolving Credit Advances then
outstanding until such Alternative Currency Revolving Credit Advances are paid
in full; fifth, to prepay Revolving Credit Advances then outstanding until such
Revolving Credit Advances are paid in full; and sixth, deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available Amount of the
Letters of Credit and Alternative Currency Letters of Credit then outstanding.
Upon the drawing of any Letter of Credit or Alternative Currency Letter of
Credit for which funds are on deposit in the L/C Cash Collateral Account, such
funds shall be applied to reimburse the Issuing Bank or the Revolving Credit
Lenders, as applicable.
(b) Mandatory. (i) On the third anniversary of the Closing Date and the
fourth anniversary of the Closing Date, respectively, the Borrower shall prepay
the amount, if any, equal to the excess of (A) the aggregate principal amount of
the Revolving Credit Advances plus the aggregate Dollar Equivalent of
Alternative Currency Revolving Credit Advances plus the aggregate principal
amount of Swing Line Advances plus the aggregate principal amount of Letter of
Credit Advances plus the aggregate principal amount of Alternative Currency
Letter of Credit Advances plus the aggregate Available Amount of all Letters of
Credit, including, without limitation, all Existing Letters of Credit, plus the
aggregate Available Amount of all Alternative Currency Letters of Credit, in
each instance, as then outstanding, after giving effect to any Advances or
renewals on such date, over (B) the Revolving Credit Facility after giving
effect to the permanent reduction thereof on such anniversary of the Closing
Date in accordance with this Section 2.05(b)(i).
(ii) Within fifteen (15) days after receipt by any Loan Party
or any of its Subsidiaries of Net Cash Proceeds from the sale, lease, transfer
or other disposition of any property or assets of any Loan Party or any of its
Subsidiaries (other than any sale, lease, transfer or other disposition of
inventory in the ordinary course of business), the Borrower shall prepay the
then outstanding Advances in an amount equal to one-hundred percent (100%) of
such Net Cash Proceeds; provided, however, that, in the case of the sale, lease,
transfer or other disposition of all of the capital stock of, or all or
substantially all of the assets of, Minitec and/or Mechanical Products, such
prepayment of then outstanding Advances in an amount equal to one-hundred
38
percent (100%) of such Net Cash Proceeds shall be applied to reduce then
outstanding Advances without any corresponding permanent reduction in the amount
of the Revolving Credit Facility.
(iii) Within fifteen (15) days following the receipt of Net
Cash Proceeds by any Loan Party or any of its Subsidiaries from any
Extraordinary Receipt received by or paid to or for the account of any Loan
Party or any of its Subsidiaries and not otherwise included in clause (ii)
above, the Borrower shall prepay the then outstanding Advances in an amount
equal to one hundred percent (100%) of such Net Cash Proceeds.
(iv) Each prepayment made pursuant to clause (i), (ii) or
(iii) shall be applied to prepay the Facilities in the following manner: first,
to prepay Letter of Credit Advances then outstanding until such Letter of Credit
Advances are paid in full; second, to prepay Alternative Currency Letter of
Credit Advances then outstanding until such Alternative Currency Letter of
Credit Advances are paid in full; third, to prepay Swing Line Advances then
outstanding until such Swing Line Advances are paid in full; fourth, to prepay
Alternative Currency Revolving Credit Advances then outstanding until such
Alternative Currency Revolving Credit Advances are paid in full; fifth, to
prepay Revolving Credit Advances then outstanding until such Revolving Credit
Advances are paid in full; and sixth, deposited in the L/C Cash Collateral
Account to cash collateralize 100% of the Available Amount of the Letters of
Credit and Alternative Currency Letters of Credit then outstanding. The amount
remaining (if any) after the required prepayment of the Advances then
outstanding and the 100% cash collateralization of the aggregate Available
Amount of Letters of Credit, including, without limitation, Existing Letters of
Credit, and Alternative Currency Letters of Credit then outstanding (the sum of
such prepayment amounts, cash collateralization amounts and remaining amount
being referred to herein as the "Reduction Amount") may be retained by the
Borrower. Upon the drawing of any Letter of Credit, including, without
limitation, any Existing Letter of Credit, or any Alternative Currency Letter of
Credit for which funds are on deposit in the L/C Cash Collateral Account, such
funds shall be applied to reimburse the Issuing Bank or the Revolving Credit
Lenders, as applicable. Upon the termination of all of the Commitments and the
indefeasible payment in full of all Obligations, including, without limitation,
termination or expiration of all Letters of Credit, including, without
limitation, all Existing Letters of Credit, and all Alternative Currency Letters
of Credit and the indefeasible payment in full of all Obligations in respect of
all Letters of Credit, including, without limitation, all Existing Letters of
Credit, and all Alternative Currency Letters of Credit funds, if any, then
remaining on deposit in the L/C Cash Collateral Account shall be returned to the
Borrower.
(v) The Borrower shall, within fifteen (15) days following the
end of each month in each Fiscal Year, pay to the Administrative Agent for
deposit in the L/C Cash Collateral Account an amount sufficient to cause the
aggregate amount on deposit in such Account to equal (i) the amount by which the
aggregate Available Amount of all Letters of Credit then outstanding exceeds the
Letter of Credit Facility on such Business Day plus (ii) the Dollar Equivalent
amount by which the aggregate Available Amount of all Alternative Currency
Letters of Credit then outstanding exceeds the Alternative Currency Letter of
Credit Facility on such Business Day.
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SECTION 2.07. Interest.
(a) Scheduled Interest. The Borrower shall pay to the Administrative
Agent, for the benefit of the Revolving Credit Lenders or Alternative Currency
Revolving Credit Lenders, as appropriate, interest on the unpaid principal
amount of each Advance owing to each Lender which has made such Advance from the
date of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Prime Rate Advances. During such periods as such Advance
is a Prime Rate Advance, a rate per annum equal at all times to the sum of (x)
the Prime Rate in effect from time to time plus (y) the Applicable Margin for
such Advance in effect from time to time, payable in arrears monthly on the last
day of each month during such periods and on the date such Prime Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Advance plus (y) the Applicable Margin for such
Advance in effect on the first day of such Interest Period plus (z) if such
Advance is denominated in Pounds Sterling, the Additional Cost relating to such
Advance for such Interest Period, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
a Default, the Borrower shall pay interest on (i) the unpaid principal amount of
each Advance owing to each Lender, payable in arrears on the dates referred to
in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above, and, in all other cases, on Prime Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a) or a Notice of Alternative Currency
Borrowing pursuant to Section 2.02(b), the Administrative Agent shall give
notice to the Borrower and each appropriate Lender of the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(ii).
SECTION 2.08. Fees.
(a) Revolving Credit Commitment Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, a commitment fee, from the
Closing Date in the case of
40
each Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Revolving Credit Termination Date, payable in arrears on the last
Business Day of each March, June, September, and December, commencing June 30,
1998, and on the Revolving Credit Termination Date, at a rate per annum equal to
the Applicable Margin then in effect for the Commitment Fee on the average daily
Unused Revolving Credit Commitment of such Lender. For the purposes of this
clause (a), (i) Swing Line Advances shall not constitute utilization of the
Revolving Credit Commitments of the Revolving Credit Lenders and (ii)
Alternative Currency Revolving Credit Advances shall not constitute utilization
of the Revolving Credit Commitments of Revolving Credit Lenders which are not
also Alternative Currency Revolving Credit Lenders.
(b) Letter of Credit and Alternative Currency Letter of Credit Fees.
(i) The Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender a commission, payable in arrears quarterly on the last
Business Day of each March, June, September and December, commencing June 30,
1998, and on the earliest to occur of the full drawing, expiration, termination
or cancellation of any Letter of Credit or Alternative Currency Letter of
Credit, other than a Trade Letter of Credit, and on the Revolving Credit
Termination Date, on such Lender's Pro Rata Share of the average daily aggregate
Available Amount during such quarter of all Letters of Credit, including,
without limitation, all Existing Letters of Credit, and the average daily
aggregate Available Amount during such quarter of all Alternative Currency
Letters of Credit, in each instance, excluding all Trade Letters of Credit and
outstanding from time to time at the rate per annum equal to the Applicable
Margin then in effect for Eurodollar Advances under the Revolving Credit
Facility. All fees payable under Section 2.08(b)(i), (ii) or (iii) in connection
with any Letter of Credit or Alternative Currency Letter of Credit shall be
payable in U.S. Dollars.
(ii) The Borrower shall pay to the Administrative Agent for
the account of each Revolving Credit Lender a commission, payable in arrears
quarterly on the last Business Day of each March, June, September and December,
commencing June 30, 1998, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any Trade Letter of Credit
(regardless of whether it is a Letter of Credit or an Alternative Currency
Letter of Credit) and on the Revolving Credit Termination Date, on such Lender's
Pro Rata Share of the average daily aggregate Available Amount during such
quarter of all Trade Letters of Credit (regardless of whether Letters of Credit
or Alternative Currency Letters of Credit) outstanding from time to time, at a
rate per annum equal to 0.25%.
(iii) The Borrower shall pay to the Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit and each Alternative Currency Letter of Credit as the Borrower
and the Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
41
SECTION 2.09. Conversion of Advances.
(a) Optional. The Borrower may on any Business Day, upon notice given
to the Administrative Agent not later than 11:00 A.M. (Buffalo, New York time)
on the third (3rd) Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.07 and 2.10, Convert all or any portion
of the Advances of one Type comprising the same Borrowing into Advances of the
other Type; provided, however, that any Conversion of Eurodollar Rate Advances
into Prime Rate Advances shall be made only on the last day of an Interest
Period for such Eurodollar Rate Advances, any Conversion of Prime Rate Advances
into Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.01(a), no Conversion of any Advances shall result
in more separate Borrowings than permitted under Section 2.02(d) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Advances to be Converted and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for such Advances.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $1,000,000, such Advances shall
automatically Convert into Prime Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Prime
Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Prime Rate Advance
and (y) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(c) Alternative Currency Revolving Credit Advances. Notwithstanding the
foregoing, Alternative Currency Revolving Credit Advances shall at all times be
Eurodollar Rate Advances, must comply with all provisions of this Agreement
applicable to Eurodollar Rate Advances and may not be converted by the Borrower
into Prime Rate Advances.
SECTION 2.10. Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change in reserve
requirements included in the Eurodollar Rate Reserve Percentage, or in the
interpretation of any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender Party of agreeing to make or of making, funding or
maintaining
42
Eurodollar Rate or Prime Rate Advances or of agreeing to issue or of issuing or
maintaining Letters of Credit or Alternative Currency Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances or
Alternative Currency Letter of Credit Advances (excluding for purposes of this
Section 2.10 any such increased costs resulting from (x) Taxes or Other Taxes
(as to which Section 2.12 shall govern) and (y) changes in the basis of taxation
of overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that a Lender Party claiming additional amounts under this Section
2.10(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or reasonably expected to be maintained by any Lender
Party or any corporation controlling such Lender Party as a result of or based
upon the existence of such Lender Party's commitment to lend or to issue Letters
of Credit or Alternative Currency Letters of Credit hereunder and other
commitments of such type or the issuance or maintenance of the Letters of Credit
or Alternative Currency Letters of Credit (or similar contingent obligations),
then, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue Letters of Credit or Alternative
Currency Letters of Credit hereunder or to the issuance or maintenance of any
Letters of Credit or Alternative Currency Letters of Credit. A certificate as to
such amounts submitted to the Borrower by such Lender Party shall be conclusive
and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 66-2/3 % of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Prime Rate Advance and (ii)
the obligation of the appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the
43
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commit-
ment will automatically, upon such demand, Convert into a Prime Rate Advance and
(ii) the obligation of the appropriate Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to find or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations.
(a) Except as otherwise specifically provided in this Agreement, the
Borrower shall make each payment hereunder and under the Notes, irrespective of
any right of counterclaim or set-off (except as otherwise provided in Section
2.15), not later than 11:00 A.M. (Buffalo, New York time) on the day when due in
U.S. Dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds. The Administrative Agent will promptly thereafter cause like
funds to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to such Lender
Parties for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to
such Lender Parties and (ii) if such payment by the Borrower is in respect of
any Obligation then payable hereunder to one Lender Party, to such Lender Party
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each
44
Lender Party ratably in accordance with such Lender Party's proportionate share
of the principal amount of all outstanding Advances and the Available Amount of
all Letters of Credit then outstanding, including, without limitation, all
Existing Letters of Credit then outstanding, and the Available Amount of all
Alternative Currency Letters of Credit, in repayment or prepayment of such of
the outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under a Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(d) All computations of interest, fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest, fees or
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or commission hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate or, in the case of
Alternative Currency Revolving Credit Advances only, at the Administrative
Agent's applicable cost as determined by the Administrative Agent and notified
by it to such Lender Party.
SECTION 2.12. Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender Party and the Administrative Agent, net income taxes
that are imposed by the United States and net income taxes (or franchise taxes
45
imposed in lieu thereof) that are imposed on such Lender Party or the
Administrative Agent by the state or foreign jurisdiction under the laws of
which such Lender Party or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender
Party, net income taxes (or franchise taxes imposed in lieu thereof) that are
imposed on such Lender Party by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for the full amount of Taxes and Other Taxes, and for the
full amount of taxes imposed by any jurisdiction on amounts payable under this
Section 2.12, imposed on or paid by such Lender Party or the Administrative
Agent, as the case may be, and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto, except
with respect to any Lender Party or the Administrative Agent, as the case may
be, for such a liability arising from such Lender Party's or the Administrative
Agent's, as the case may be, willful misconduct or gross negligence. This
indemnification shall be made within thirty (30) days from the date on which
such Lender Party or the Administrative Agent, as the case may be, makes written
demand specifying in reasonable detail the basis therefor.
(d) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original receipt of payment thereof or a certified copy of
such receipt. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States or
by or on behalf of the Borrower by a payor that is not a United States person,
if the Borrower determines that no Taxes are payable in respect thereof, the
Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the
46
Assignment and Acceptance pursuant to which it became a Lender Party in the case
of each other Lender Party, and from time to time thereafter as requested in
writing by the Borrower or the Administrative Agent (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and the Borrower with two original Internal Revenue Service
forms 1001 or 4224, as appropriate, or any successor or other form prescribed by
the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender Party provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender Party
becomes a party to this Agreement, the Lender Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001 or 4224, that the Lender Party reasonably considers to be
confidential, the Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Lender Party shall not be entitled
to indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender Party become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable pursuant
to this Section 2.12 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) (i) on account of Obligations
due and payable to such Lender Party hereunder or under the Notes at such time
in excess of its ratable share (according to the proportion of (x) the amount of
such Obligations due and payable to such Lender Party at such time to (y) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under
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the Notes at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder or under the Notes at such time obtained
by all the Lender Parties at such time or (ii) on account of Obligations owing
(but not due and payable) to such Lender Party hereunder and under the Notes at
such time in excess of its ratable share (according to the proportion of (x) the
amount of such Obligations owing to such Lender Party at such time to (y) the
aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time) of payments on
account of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time obtained by all of the Lender Parties
at such time, such Lender Party shall forthwith notify the Administrative Agent
thereof and purchase from the other Lender Parties such participations in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and each such other
Lender Party shall repay to the purchasing Lender Party the purchase price to
the extent of such Lender Party's ratable share (according to the proportion of
(x) the purchase price paid to such Lender Party to (y) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (x) the
amount of such other Lender Party's required repayment to (y) the total amount
of such required repayments to the purchasing Lender Party) of any interest or
other amount paid or payable by the purchasing Lender Party in respect of the
total amount so recovered.
The Borrower agrees that any Lender Party so purchasing a participation from
another Lender Party pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit and Alternative Currency Letters of Credit shall
be available, and the Borrower shall use such proceeds and Letters of Credit and
Alternative Currency Letters of Credit solely (i) to finance the Acquisition,
(ii) to pay fees and expenses incurred in connection with the Acquisition, (iii)
to refinance certain Existing Debt of the Borrower and LICO, and (iv) for
general corporate purposes, including to finance acquisitions permitted under
clause (B) of Section 5.02(d)(iii). Notwithstanding the foregoing or any other
provision of this Agreement or any other Loan Document, Letters of Credit in
face amounts not to exceed $5,000,000 in the aggregate may be issued by the
Issuing Bank hereunder in support of the Existing Marine Midland Letters of
Credit or otherwise for the benefit of Marine Midland in respect of the Existing
Marine Midland Letters of Credit.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the
48
Borrower shall so set off and otherwise apply its obligation to make any such
payment against the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off and otherwise
applied by the Borrower shall constitute for all purposes of this Agreement and
the other Loan Documents an Advance by such Defaulting Lender made on the date
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance shall be a
Prime Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01, even
if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (i) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (ii) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lender Parties and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents, payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to the Lender Parties for any Defaulted Amounts
then owing to such Lender Parties, ratably in accordance with such respective
Defaulted Amounts then owing to such Lender Parties.
49
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to
the Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with Fleet, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be Fleet's standard terms
applicable to escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative Agent from time to time in accordance
with the provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held in
escrow from time to time to the extent necessary to make any Advances required
to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the Lender Parties for any amount then due and
payable by such Defaulting Lender to such Lender Parties hereunder, ratably in
accordance with such respective amounts then due and payable to such Lender
Parties; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents in such manner as the Administrative
Agent shall reasonably direct.
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(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit (other than the Existing Letters of Credit, which are already
issued and outstanding on the date hereof) or an Alternative Currency Letter of
Credit on the occasion of the Initial Extension of Credit hereunder is subject
to the satisfaction of each of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent and the Lenders, and in sufficient copies (except for the Notes), for each
Lender Party:
(i) The Revolving Credit Notes payable to the order of the
Revolving Credit Lenders.
(ii) The Alternative Currency Notes payable to the order of
the Alternative Currency Revolving Credit Lenders.
(iii) A security agreement in substantially the form of
Exhibit F granting to the Administrative Agent, for the ratable benefit of the
Lenders, a first and only priority security interest in all of the personal
property and assets of the Borrower and each of its Domestic Significant
Subsidiaries and such other Domestic Subsidiaries of the Borrower as the
Administrative Agent may reasonably request and LICO and each of its Domestic
Significant Subsidiaries and such other Domestic Subsidiaries of LICO as the
Administrative Agent may reasonably request (together with each other security
agreement delivered pursuant to Section 5.01(m), in each case as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, each a "Security Agreement"), duly executed by the Borrower and each of
such of its Subsidiaries and LICO and each of such of its Subsidiaries, together
with:
(A) acknowledgment copies or stamped receipt copies
of proper financing statements, duly filed before the day of the
Initial Extension of Credit (or other confirmation reasonably
satisfactory to the Administrative Agent of such filing) under the
Uniform Commercial Code of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to perfect and protect
the first and only priority liens and security interests created under
the Security Agreement, covering the Collateral described in the
Security Agreement;
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(B) completed requests for information, dated on or
before the date of the Initial Extension of Credit, listing the
financing statements referred to in clause (A) above and all other
effective financing statements filed in the jurisdictions referred to
in clause (A) above that name the Borrower or any of its Subsidiaries
or LICO or any of its Subsidiaries as debtor, together with copies of
such other financing statements;
(C) evidence of the completion of all other
recordings and filings of or with respect to the Security Agreement
that the Administrative Agent may deem necessary or desirable in order
to perfect and protect the Liens created thereby;
(D) evidence of the insurance required by the terms
of the Security Agreement;
(E) copies of the Assigned Agreements, if any,
referred to in the Security Agreement, together with a consent to such
assignments, if any, in substantially the form of Exhibit C to the
Security Agreement, duly executed by each party to such Assigned
Agreements other than the Borrower;
(F) certificates representing the Pledged Shares
referred to in the Security Agreement, accompanied by undated stock
powers executed in blank; and
(G) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the first and only priority liens and security
interests created under the Security Agreement has been taken.
(iv) An intellectual property security agreement in
substantially the form of Exhibit G hereto granting to the
Administrative Agent for the ratable benefit of the Lenders a first and
only priority security interest in all of the intellectual property of
the Borrower and each of its Domestic Significant Subsidiaries and such
other Domestic Subsidiaries of the Borrower as the Administrative Agent
shall reasonably request, and LICO and each of its Domestic Significant
Subsidiaries and such other Domestic Subsidiaries of LICO as the
Administrative Agent shall reasonably request (together with each other
intellectual property security agreement delivered pursuant to Section
5.01(m), in each case as amended, supplemented or otherwise modified
from time to time in accordance with its terms, each an "Intellectual
Property Security Agreement"), duly executed by the Borrower and each
of such of its Subsidiaries and LICO and each of such of its
Subsidiaries, together with evidence that all action that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the first and only priority liens and security
interests created under the Intellectual Property Security Agreement
has been taken.
(v) A guaranty in substantially the form of Exhibit H hereto
(as hereafter amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Guaranty"), duly executed by each Domestic
Significant Subsidiary of the Borrower or LICO and each such other Domestic
Subsidiary of the Borrower or LICO as the Administrative Agent may reasonably
request.
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(vi) Certified copies of (A) resolutions of the Board of
Directors of the Borrower and each other Loan Party approving this Agreement,
the Notes, the Acquisition, the LICO Stock Purchase Agreement, the Senior
Subordinated Notes, and each other Loan Document, Acquisition Document and
Senior Subordinated Note Document to which it is or is to be a party, and all of
the transactions contemplated hereby or thereby, including, without limitation,
the Acquisition and the offering of the Senior Subordinated Notes, and (B) all
documents evidencing other necessary corporate action and governmental and other
third party approvals and consents, if any, with respect to this Agreement, the
Notes, the Acquisition, the LICO Stock Purchase Agreement, the Senior
Subordinated Notes, the Senior Subordinated Note Indenture, and each other Loan
Document, Acquisition Document and Senior Subordinated Note Document, and all of
the transactions contemplated hereby or thereby, including, without limitation,
the Acquisition and the offering of the Senior Subordinated Notes.
(vii) A copy of the charter of the Borrower, LICO and each
other Loan Party and each amendment thereto, certified (as of a date reasonably
near the date of the Initial Exten-
sion of Credit) by the Secretary of State of the jurisdiction of its
incorporation as being a true and correct copy thereof.
(viii) A copy of a certificate of the Secretary of State of
the jurisdiction of its incorporation, dated within five (5) Business Days of
the date of the Initial Extension of Credit, listing the charter of the
Borrower, LICO and each other Loan Party and each amendment thereto on file in
its office and certifying that (A) such amendments are the only amendments to
the Borrower's, LICO's or such other Loan Party's charter on file in its office,
(B) the Borrower, LICO and each other Loan Party have paid all franchise taxes
to the date of such certificate and (C) the Borrower, LICO and each other Loan
Party are duly incorporated and in good standing under the laws of the State of
the jurisdiction of its incorporation.
(ix) A copy of a certificate of the Secretary of State of each
State listed on Schedule 3.01(a)(ix), dated reasonably near the date of the
Initial Extension of Credit, stating that the Borrower, LICO and each other Loan
Party are duly qualified and in good standing as foreign corporations in such
State and have filed all annual reports required to be filed to the date of such
certificate.
(x) A certificate of the Borrower, LICO and each other Loan
Party signed on behalf of the Borrower, LICO or such other Loan Party, as the
case may be, by a Responsible Officer and the Secretary or an Assistant
Secretary of the Borrower, LICO or such other Loan Party, as the case may be,
dated the date of the Initial Extension of Credit (the statements made in such
certificate shall be true on and as of the date of the Initial Extension of
Credit), certifying as to (A) the absence of any amendments to the charter of
the Borrower, LICO or such other Loan Party since the date of the Secretary of
State's certificate referred to in Section 3.01(a)(viii), (B) a true and correct
copy of the bylaws of the Borrower, LICO and each other Loan Party as in effect
on the date of the Initial Extension of Credit, (C) the due incorporation and
good standing of the Borrower, LICO and each other Loan Party as a corporation
organized under the laws of the jurisdiction of its incorporation, and the
absence of any proceeding for the dissolution or liquidation of the Borrower,
LICO or any other Loan Party, (D) the truth of the representations and
warranties contained in any Pre-Commitment Information, the Loan Documents, the
Acquisition Documents and the Senior Subordinated Note Documents as though made
on and as
53
of the date of the Initial Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial Extension of Credit,
that constitutes a Default.
(xi) A certificate of the Secretary or an Assistant Secretary
of each of the Borrower, LICO and each other Loan Party certifying the names and
true signatures of the officers of the Borrower, LICO and each other Loan Party
authorized to sign this Agreement, the Notes, each other Loan Document to which
it is or is to be a party and the other documents to be delivered hereunder and
thereunder.
(xii) Such financial, business and other information regarding
the Borrower, LICO, each other Loan Party and each such Person's Subsidiaries as
any of the Lender Parties shall have reasonably requested, including, without
limitation, information as to possible contingent liabilities, tax matters,
Environmental Actions, Environmental Permits, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining agreements and
other arrangements with employees, audited annual financial statements dated
March 31, 1997 (September 30, 1997, in the case of LICO and its Subsidiaries),
interim financial statements dated the end of the most recent fiscal quarter for
which financial statements are available (or, in the event the Lender Parties'
due diligence review reveals material changes since such financial statements,
as of a later date within thirty (30) days of the day of the Initial Extension
of Credit), pro forma financial statements as to the Borrower, LICO and each of
the other Loan Parties and forecasts prepared by management the Borrower, all in
form and substance reasonably satisfactory to the Lender Parties.
(xiii) A Notice of Borrowing.
(b) The Lender Parties shall be satisfied with the corporate and legal
structure and capitalization of the Borrower, each Guarantor and each Foreign
Significant Subsidiary, including, without limitation, the terms and conditions
of the charter, by-laws and each class of capital stock of the Borrower, each
such Guarantor and each such Foreign Significant Subsidiary and of each
agreement or instrument relating to such structure or capitalization.
(c) The Lender Parties shall be satisfied that all Existing Debt, other
than the Debt identified on Schedule 4.01(aa) (the "Surviving Debt"), has been
(or, upon consummation of the Acquisition, will be) prepaid, repaid, redeemed or
defeased in full or otherwise satisfied and extinguished, that all Liens in
respect thereof have been (or, upon consummation of the Acquisition, will be)
terminated and released and that all such Surviving Debt shall be on terms and
conditions satisfactory to the Lender Parties.
(d) There shall have occurred no material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of either (i) the Borrower and its Subsidiaries, taken
as a whole, since March 31, 1997, or (ii) LICO and its Subsidiaries, taken as a
whole, since September 30, 1997.
(e) There shall exist no action, suit, investigation, litigation or
proceeding pending or threatened in any court or before any arbitrator or
governmental or regulatory agency or authority that (i) could reasonably be
expected to (A) have a material adverse effect on the business, condition
(financial or otherwise), operations, performance, properties or prospects of
the
54
Borrower and its Subsidiaries, taken as a whole, or LICO and its Subsidiaries,
taken as a whole, (B) adversely affect the ability of the Borrower or any
Guarantor to perform its obligations under the Loan Documents or (C) adversely
affect the rights and remedies of the Administrative Agent and the Lender
Parties under the Loan Documents or (ii) purports to adversely affect any aspect
of the Transactions or the Facilities.
(f) All governmental and third party consents and approvals necessary
in connection with each aspect of the Acquisition, the Senior Subordinated Notes
(including, without limitation, the offering thereof), and the Facilities shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Initial Lenders) and shall remain in effect; all applicable
waiting periods shall have expired without any adverse action being taken by any
competent authority; and no law or regulation shall be applicable in the
reasonable judgment of the Lender Parties that restrains, prevents or imposes
materially adverse conditions upon any aspect of the Acquisition, the Senior
Subordinated Notes (including, without limitation, the offering thereof) or the
Facilities.
(g) The Lender Parties shall have completed a due diligence
investigation of LICO and its Subsidiaries in scope, and with results,
satisfactory to the Lender Parties; the Borrower and each of the Guarantors
shall have given the Administrative Agent such access to their respective books
and records as the Administrative Agent may have requested in order to carry out
its investigations, appraisals and analyses, and the Lenders shall have received
all additional financial, business and other information regarding the Borrower,
LICO and their respective Subsidiaries and properties as they shall have
reasonably requested. All of the information provided by or on behalf of the
Borrower or any of its Subsidiaries or by or on behalf of LICO or any of its
Subsidiaries to the Administrative Agent or the Lender Parties prior to February
26, 1998 (the "Pre-Commitment Information") shall be true and correct in all
material aspects, and no development or change shall have occurred, and no
additional information shall have come to the attention of the Administrative
Agent or the Lenders, that (i) has resulted in or could reasonably be expected
to result in a material change in, or material deviation from, the
Pre-Commitment Information or (ii) has had or could reasonably be expected to
have a Material Adverse Effect.
(h) The Borrower shall have delivered a letter, in form and substance
satisfactory to the Administrative Agent, attesting to the Solvency (as
hereinafter defined) of the Borrower, individually and together with its
Subsidiaries, taken as a whole, immediately before and immediately after giving
effect to the Acquisition and the offering of the Senior Subordinated Notes,
from its chief financial officer. As used herein, the term "Solvency" of any
person means (i) the fair value of the property of such person exceeds its total
liabilities (including, without limitation, contingent liabilities), (ii) the
present fair saleable value of the assets of such person is not less than the
amount that will be required to pay its probable liability on its debts as they
become absolute and matured, (iii) such person does not intend to, and does not
believe that it will, incur debts or liabilities beyond its ability to pay as
such debts and liabilities mature and (iv) such person is not engaged, and is
not about to engage, in business or a transaction for which its property would
constitute an unreasonably small capital.
(i) The Borrower shall have demonstrated to the Administrative Agent's
reasonable satisfaction (i) whether the operations of the Borrower and its
Subsidiaries and LICO and its
55
Subsidiaries comply in all material respects with applicable Environmental Laws
and health and safety statutes and regulations, including, without limitation,
regulations promulgated under the Federal Resource Conservation and Recovery
Act; (ii) whether such operations are the subject of any Environmental Actions
requiring an expenditure which could have a Material Adverse Effect on the
Borrower and its Subsidiaries, taken as a whole, or, in the case of LICO or any
of its Subsidiaries, LICO and its Subsidiaries, taken as a whole, to respond to
such Environmental Actions; (iii) whether the Borrower, any of the Guarantors or
any Foreign Significant Subsidiary has or could reasonably be expected to have
any contingent liability which could have a Material Adverse Effect on the
Borrower and its Subsidiaries, taken as a whole, or, in the case of LICO or any
of its Subsidiaries, LICO and its Subsidiaries, taken as a whole, in connection
with any Environmental Action; (iv) that the Borrower, LICO and their respective
Subsidiaries have complied in all material respects with applicable
Environmental Laws; and (v) that the Borrower has completed such environmental
investigations as the Administrative Agent may request with respect to the
operations of the Borrower and its Subsidiaries and LICO and its Subsidiaries
and such investigations have not uncovered any condition or conditions which
could reasonably be expected to have a Material Adverse Effect on the Borrower
and its Subsidiaries, taken as a whole, or, in the case of LICO or any of its
Subsidiaries, LICO and its Subsidiaries, taken as a whole.
(j) The Lenders shall be satisfied that (i) the Borrower and its
Subsidiaries will be able to meet their respective obligations under all
employee and retiree welfare plans, (ii) the employee benefit plans of the
Borrower and its Subsidiaries and of LICO and its Subsidiaries are, in all
material respects, funded in accordance with the minimum statutory requirements,
(iii) no material "reportable event" (as defined in ERISA, but excluding events
for which reporting has been waived) has occurred as to any such employee
benefit plan and (iv) no termination of, or withdrawal from, any such employee
benefit plan, including, without limitation, any Multiemployer Plan, has
occurred or is contemplated that could reasonably be expected to result in a
material liability. The Borrower shall have delivered to the Administrative
Agent copies of each employment agreement and each other compensation agreement
or arrangement with any officer of the Borrower, LICO or any other Loan Party.
(k) The Lenders shall be satisfied with the amount, types and terms and
conditions of all insurance maintained by or, after giving effect to the
consummation of the Acquisition, to be maintained by, the Borrower and its
Subsidiaries, and the Lenders shall have received endorsements naming the
Administrative Agent, on behalf of the Lenders, as an additional insured or loss
payee, as applicable, under all insurance policies to be maintained with respect
to the properties of the Borrower and its Subsidiaries forming any part of the
Lenders' Collateral under the Security Agreement and the other Loan Documents.
(l) The Lenders shall have received satisfactory opinions of counsel
for the Borrower and Guarantors, and of local and special counsel, to the extent
requested by the Administrative Agent, as to the transactions contemplated
hereby.
(m) There shall exist no Default or Event of Default under any of the
Loan Documents, and all legal matters incident to the Initial Extension of
Credit shall be satisfactory to counsel for the Administrative Agent.
56
(n) All accrued fees and expenses of the Administrative Agent and the
Lenders (including the fees and expenses of counsel for the Administrative Agent
and local counsel for the Administrative Agent) shall have been paid.
(o) The final terms and conditions of the Acquisition (i) shall be as
described in this Agreement and otherwise consistent with the description
thereof received in writing as part of the Pre-Commitment Information and (ii)
shall be otherwise satisfactory to the Administrative Agent and Lenders. All
documentation relating to the Acquisition shall be in form and substance
satisfactory to the Administrative Agent. The Acquisition shall have been
consummated for aggregate consideration not in excess of $155,000,000, all in
accordance with the terms of the LICO Stock Purchase Agreement (such Agreement
to be in form and substance acceptable to the Administrative Agent), without any
waiver or amendment of any material term or condition contained therein not
consented to by the Administrative Agent and in compliance with all applicable
laws and all necessary approvals, and the Administrative Agent shall have
received evidence, in form and substance satisfactory to the Administrative
Agent, of such consummation.
(p) The final terms and conditions of the Senior Subordinated Notes
shall be in form and substance satisfactory to the Administrative Agent and
Lenders. All of the Senior Subordinated Note Documents, including the prospectus
and the Senior Subordinated Note Indenture, shall be in form and substance
satisfactory to the Administrative Agent and Lenders. The Senior Subordinated
Notes shall be general unsecured obligations of the Borrower, fully subordinated
to all Obligations under this Agreement and the other Loan Documents on terms
and pursuant to documentation acceptable to the Administrative Agent and
Lenders. The net proceeds of the offering of the Senior Subordinated Notes shall
be at least $190,000,000, and the entire net proceeds of the offering of the
Senior Subordinated Notes shall have been received by the Borrower and used by
the Borrower, together with proceeds of the Revolving Credit Facility, to
finance the Acquisition, to pay fees and expenses and to refinance existing
indebtedness, including, without limitation, the Existing Credit Agreement and
other Existing Debt, all in amounts and on terms acceptable to the
Administrative Agent and Lenders.
(q) All Advances made under this Agreement shall be in full compliance
with all applicable requirements of law, including, without limitation,
Regulations G, T, U and X.
(r) The Administrative Agent shall have received a duly executed and
delivered counterpart of landlord waivers from all landlords and leasehold
mortgage holders with respect to any Inventory located at a location that is not
owned by the Borrower, as deemed necessary or desirable in the Administrative
Agent's sole discretion, to preserve or otherwise in respect of the
Administrative Agent's rights in Collateral.
(s) The Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request, and all legal matters incident to such Borrowing shall be
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The
obligation of each appropriate Lender to make an Advance (other than a Revolving
Credit Advance made by a Revolving Credit Lender pursuant to Section 2.02(b), a
Letter of Credit Advance made by the Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c), an Alternative
57
Currency Letter of Credit Advance made by Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(d) and a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(c)), and the obligation of the Issuing
Bank to issue a Letter of Credit or an Alternative Currency Letter of Credit
(including the initial issuance thereof) or renew a Letter of Credit or an
Alternative Currency Letter of Credit and the right of the Borrower to request
the issuance or renewal of a Letter of Credit or an Alternative Currency Letter
of Credit, shall each be subject to the further conditions precedent that on the
date of each such Borrowing or issuance or renewal:
(a) Each of the conditions precedent listed in Section 3.01 shall have
been satisfied or waived in accordance with this Agreement.
(b) The following statements shall be true and the Administrative Agent
shall have received a certificate signed by a duly authorized officer of the
Borrower, dated the date of such Borrowing or issuance or renewal, stating that
(and each of the giving of the applicable Notice of Borrowing, Notice of Swing
Line Borrowing or Notice of Issuance or Notice of Renewal and the acceptance by
the Borrower of the proceeds of a Borrowing or of a Letter of Credit or the
renewal of a Letter of Credit shall constitute a representation and warranty by
the Borrower that both on the date of such notice and on the date of such
Borrowing or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving effect to
such Borrowing or issuance or renewal and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of the
proceeds therefrom, that consti-
tutes a Default; and
(iii) for each Revolving Credit Advance, Alternative Currency
Revolving Credit Advance, Swing Line Advance made by the Swing Line Bank or
issuance or renewal of any Letter of Credit or Alternative Currency Letter of
Credit, the Revolving Credit Facility exceeds the aggregate principal amount of
the Revolving Credit Advances plus the Assigned Dollar Value of Alternative
Currency Revolving Credit Advances plus Swing Line Advances plus Letter of
Credit Advances plus the Assigned Dollar Value of Alternative Currency Letter of
Credit Advances plus the aggregate Available Amount of all Letters of Credit and
Alternative Currency Letters of Credit, in each instance, then outstanding after
giving effect to such Advance or issuance or renewal, respectively.
(c) for each Alternative Currency Revolving Credit Advance or issuance
or renewal of any Alternative Currency Letter of Credit, the Alternative
Currency Revolving Credit Facility exceeds the aggregate principal amount of the
Assigned Dollar Value of Alternative Currency Revolving Credit Advances plus
Alternative Currency Letter of Credit Advances plus the aggregate Available
Amount of all Alternative Currency Letters of Credit, in each instance, then
outstanding after giving effect to such Advance or issuance or renewal,
respectively.
58
(d) The Administrative Agent shall have received such other approvals,
opinions or documents as any appropriate Lender through the Administrative Agent
may reasonably request, and all legal matters incident to such Borrowing or
issuance of such Letter of Credit shall be satisfactory to counsel for the
Administrative Agent.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.0l, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received written notice from such
Lender Party prior to the Initial Extension of Credit, specifying its objection
thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property or in
which the conduct of its business requires it to so qualify or be licensed
except where the failure to so qualify or be licensed could not reasonably be
expected to have a Material Adverse Effect and (iii) has all requisite corporate
power and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the Closing Date,
after giving effect to the Borrower's satisfaction of the conditions precedent
set forth in Section 3.01(o) of this Agreement, and as to each such Subsidiary,
the jurisdiction of its incorporation, the number of shares of each class of
capital stock authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly or
indirectly) by such Loan Party and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and similar
rights at the date hereof. All of the outstanding capital stock of all of such
Subsidiaries has been validly issued, is fully paid and non-assessable and is
owned by such Loan Party or one or more of its Subsidiaries free and clear of
all Liens, except those created under the Collateral Documents. Each such
Subsidiary (i) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except where the failure to
so qualify or be licensed could not reasonably be expected to have a Material
Adverse Effect, and (iii) has all requisite corporate
59
power and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes, each other Loan Document, each Acquisition Document to
which it is or is to be a party, and each Senior Subordinated Note Document to
which it is or is to be a party, and the consummation of the Acquisition and the
offering of the Senior Subordinated Notes, and the consummation of the other
transactions contemplated hereby and thereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate action,
and do not (i) contravene such Loan Party's charter or bylaws, (ii) violate any
law (including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule,
regulation (including, without limitation, Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in the breach of,
or constitute a default under, any material contract, loan agreement, indenture,
mortgage, deed of trust, lease or other material instrument or agreement binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
respective properties or (iv) except for the Liens created under the Collateral
Documents, result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument or agreement, the
violation or breach of which could reasonably be expected to have a Material
Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, the Notes, any other Loan
Document, any Acquisition Document to which it is or is to be a party, or any
Senior Subordinated Note Document to which it is or is to be a party, or for the
consummation of the Acquisition or the offering of the Senior Subordinated
Notes, or the consummation of the other transactions contemplated hereby or
thereby, (ii) the grant by any Loan Party of the Liens granted by it pursuant to
the Collateral Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first and only priority
nature thereof) or (iv) the exercise by the Administrative Agent or any Lender
Party of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 4.01(d), all of which
have been duly obtained, taken, given or made and are in full force and effect.
All applicable waiting periods in connection with the Acquisition and the other
transactions contemplated hereby or thereby have expired without any action
having been taken by any competent authority restraining, preventing or imposing
materially adverse conditions upon the Acquisition, the offering of the Senior
Subordinated Notes or the transactions contemplated hereby or thereby or the
rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
60
(e) This Agreement, each of the Notes, each other Loan Document, each
Acquisition Document and each Senior Subordinated Note Document has been, or
when delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement, each of the Notes, each other Loan Document,
each Acquisition Document and each Senior Subordinated Note Document has been,
or when delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance with
its terms.
(f) (i) The Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at March 31, 1997, and the related Consolidated
and consolidating statements of income and Consolidated and consolidating
statements of cash flows of the Borrower and its Subsidiaries for the fiscal
year then ended, accompanied by (in the case of such Consolidated financial
statements) an opinion of Ernst & Young LLP, independent public accountants, and
the Consolidated balance sheets of the Borrower and its Subsidiaries as at June
30, 1997, September 30, 1997 and December 31, 1997 and the related Consolidated
statements of income and Consolidated statements of cash flows of the Borrower
and its Subsidiaries for the periods then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to each
Lender Party, fairly present, subject, in the case of said balance sheets as at
June 30, 1997, September 30, 1997 and December 31, 1997 and said statements of
income and cash flows for each of the periods then ended, to normal year-end
audit adjustments, the Consolidated (and, with respect to the balance sheets
dated March 31, 1997, consolidating) financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated (and, with respect to the
statements of income dated March 31, 1997, consolidating) results of the
operations of the Borrower and its Subsidiaries for the period ended on such
date, all in accordance with generally accepted accounting principles applied on
a consistent basis, and, since March 31, 1997, there has been no Material
Adverse Change.
(ii) The consolidated and consolidating balance sheets of LICO
and its Subsidiaries as at September 30, 1997, and the related consolidated and
consolidating statements of income and consolidated and consolidating statements
of cash flows of LICO and its Subsidiaries for the fiscal year then ended,
accompanied by (in the case of such consolidated financial statements) the
opinion of Ernst & Young LLP, independent public accountants, and the
consolidated balance sheet of LICO and its Subsidiaries as at December 31, 1997
and the related consolidated statement of income and consolidated statement of
cash flows of LICO and its Subsidiaries for the three months then ended, copies
of which have been furnished to each Lender Party, fairly present, subject, in
the case of said balance sheet as at December 31, 1997 and said statements of
income and cash flows for the period then ended, to normal year-end audit
adjustments, the consolidated (and, with respect to the balance sheets dated
September 30, 1997, consolidating) financial condition of LICO and its
Subsidiaries as at such dates and the consolidated (and, with respect to the
statements of income dated September 30, 1997, consolidating) results of
operations of LICO and its Subsidiaries for the period ended on such date, all
in accordance with GAAP applied on a consistent basis, and since September 30,
1997, there has been no Material Adverse Change.
(g) The Consolidated pro forma balance sheet of the Borrower and its
Subsidiaries as at the date on which the Acquisition is consummated, and the
related Consolidated pro forma statement of income and cash flows of the
Borrower and its Subsidiaries for the period then
61
ended, certified by the chief financial officer of the Borrower, copies of which
have been furnished to each Lender Party, fairly present the Consolidated pro
forma financial condition of the Borrower and its Subsidiaries as at such date
and the Consolidated pro forma results of operations of the Borrower and its
Subsidiaries for the period ended on such date, in each case after giving effect
to the Acquisition, the offering of the Senior Subordinated Notes (and the
receipt and application by the Borrower of the net proceeds therefrom) and the
other transactions contemplated hereby and thereby, all in accordance with GAAP.
(h) None of the Pre-Commitment Information or any information, exhibit
or report furnished by any Loan Party to the Administrative Agent or any Lender
Party in connection with the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made therein not misleading.
(i) Except as set forth on Schedule 4.01(i) hereto, there is no action,
suit, investigation, litigation or proceeding affecting the Borrower, LICO, any
other Loan Party or any of their respective Subsidiaries, including, without
limitation, any Environmental Action, pending or threatened before any court,
governmental agency or arbitrator that could reasonably be expected to have a
Material Adverse Effect, and there has been no material adverse change in the
status, or financial effect on any Loan Party or any of its Subsidiaries, of any
of the litigation disclosed on Schedule 4.01(i) from the description thereof set
forth on such Schedule 4.01(i).
(j) Neither the Borrower nor LICO nor any of their respective
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(k) Except as set forth on Schedule 4.01(k) hereto, none of the
Borrower, LICO or any of their ERISA Affiliates maintains or has maintained any
Plans or Multiemployer Plans. Set forth on Schedule 4.01(k) is a complete and
accurate list of all Welfare Plans and all defined contribution plans in respect
of which any Loan Party could have liability.
(l) Except as set forth in the financial statements referred to in this
Section 4.01 and in Section 5.03, none of the Borrower, LICO, any of the other
Loan Parties or any of their respective Subsidiaries has any material liability
with respect to "expected post retirement benefit obligations" within the
meaning of Statement of Financial Accounting Standards No. 106.
(m) Neither the business nor the properties of any Loan Party or any of
its Subsidiaries are affected by any fire, explosion, accident, strike, lockout
or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy or other casualty (whether or not covered by insurance) that
could reasonably be expected to have a Material Adverse Effect.
(n) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all known material respects with all applicable
Environmental Laws and Environmental Permits, all known past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs that could reasonably be expected to have a
Material Adverse Effect, and no circumstances exist that could reasonably be
expected to (i) form the basis of an Environmental Action against any Loan Party
or any of its Subsidiaries or any of their properties that could reasonably be
expected to have a Material Adverse Effect
62
or (ii) cause any such property to be subject to any material restrictions on
ownership, occupancy, use or transferability under any Environmental Law.
(o) Except as disclosed in the environmental assessment reports listed
on Schedule 4.01(o) hereto and except for any or all disclosures which would not
either individually or in the aggregate be material to the Borrower or any other
Loan Party, (i) none of the properties currently or formerly owned or operated
by any Loan Party or any of its Subsidiaries is listed or proposed for listing
on the NPL or on the CERCLIS or any analogous foreign, state or local list or is
adjacent to any such property; (ii) there are no and, to the best of its
knowledge, never have been any underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or, to the best of its knowledge, have been treated, stored
or disposed on any property currently owned or operated by any Loan Party or any
of its Subsidiaries or on any property formerly owned or operated by any Loan
Party or any of its Subsidiaries; (iii) there is no friable asbestos or friable
asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries; and (iv) Hazardous Materials have not
been released, discharged or disposed of on any property currently owned or
operated by any Loan Party or any of its Subsidiaries, or any property formerly
owned or operated by any Loan Party or any of its Subsidiaries or, to the best
of its knowledge, any property owned or operated or formerly owned or operated
by LICO or any of its Subsidiaries.
(p) Except as disclosed on Schedule 4.01(o), neither any Loan Party nor
any of its Subsidiaries is undertaking, and has not completed, either
individually or together with other potentially responsible parties, any
investigation or assessment or Remedial, Response or Removal action relating to
any actual or threatened release, discharge or disposal of Hazardous Materials
at any site, location or operation, either voluntarily or pursuant to the order
of any governmental or regulatory authority or the requirements of any
Environmental Law that could reasonably be expected to have a Material Adverse
Effect; and all Hazardous Materials generated, used, treated, handled or stored
at, or transported to or from, any property currently owned or operated by any
Loan Party or any of its Subsidiaries or any property formerly owned or operated
by any Loan Party or any of its Subsidiaries or, to the best of its knowledge,
any property owned or operated or formerly owned or operated by LICO or any of
its Subsidiaries have been disposed of in a manner not reasonably expected to
result in material liability to any Loan Party or any of its Subsidiaries.
(q) Except as set forth on Schedule 4.01(q), neither any Loan Party nor
any of its Subsidiaries nor LICO nor any of its Subsidiaries is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that could
reasonably be expected to have a Material Adverse Effect.
(r) The Collateral Documents create in favor of the Administrative
Agent, for the ratable benefit of the Lenders, a valid and perfected first
priority security interest in the Collateral (which Collateral includes all of
the assets and personal property, whether now owned or hereafter acquired and
all of the products and proceeds of any of the foregoing, of the Borrower and
each Guarantor, and all of the outstanding capital stock of each of the
Borrower's Domestic Subsidiaries and such of the Borrower's Foreign Subsidiaries
as are listed on Schedule 4.01(r)), securing the payment of the Obligations, and
all filings and other actions necessary or reasonably
63
desirable to perfect and protect such security interest have been duly taken.
The Loan Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the liens and security interests created or
expressly permitted under the Loan Documents.
(s) Each Loan Party and each of its Subsidiaries has filed, has caused
to be filed or has been included in all tax returns (Federal, state, local and
foreign) required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
(t) Set forth on Schedule 4.01(t) is a complete and accurate list of
each taxable year of each Loan Party and each of its Subsidiaries for which
Federal income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not occurred
by reason of extension or otherwise (an "Open Year").
(u) There is no unpaid amount of adjustments to the Federal income tax
liability of each Loan Party and each of its Subsidiaries proposed by the
Internal Revenue Service with respect to Open Years. No issues have been raised
by the Internal Revenue Service in respect of Open Years that, in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(v) There is no unpaid amount of adjustments to the state, local and
foreign tax liability of each Loan Party and its Subsidiaries proposed by any
state, local or foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns). No issues have been raised by such
taxing authorities that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(w) Except to the extent effected by the consummation of the
Acquisition, no "ownership change" as defined in Section 382(g) of the Internal
Revenue Code, and no event that would result in the application of the "separate
return limitation year" or "consolidated return change of ownership" limitations
under the Federal income tax consolidated return regulations, has occurred with
respect to any Loan Party.
(x) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the making of any Advances,
nor the issuance of any Letters of Credit, nor the application of the proceeds
or repayment thereof by the Borrower, nor the consummation of the Acquisition or
the other transactions contemplated hereby or thereby, will violate any
provision of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder or any takeover, disclosure or other federal,
state or foreign securities law or Regulations G, T, U or X of the Federal
Reserve Board. The Borrower is not subject to regulation under any federal,
state or foreign statute or regulation which limits its ability to incur Debt.
(y) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(z) Set forth on Schedule 4.01(z) is a complete and accurate list of
all Existing Debt the principal amount of which is greater than $1,000,000
(other than Surviving Debt), showing
64
as of the date hereof the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
(aa) Set forth on Schedule 4.01(aa) is a complete and accurate list of
all Surviving Debt the principal amount of which is greater than $1,000,000,
showing as of the date hereof the principal amount outstanding thereunder, the
maturity date thereof and the amortization schedule therefor.
(bb) Set forth on Schedule 4.01 (bb) is a complete and accurate list of
all real property owned by any Loan Party or any of its Subsidiaries or in which
any Loan Party has an interest as a contract vendee, showing as of the date
hereof the street address, county or other relevant jurisdiction, state, record
owner and book and estimated fair value thereof. Each Loan Party or such
Subsidiary has good, marketable and insurable fee simple title to such real
property, free and clear of all Liens, other than Permitted Liens.
(cc) Set forth on Schedule 4.01(cc) is a complete and accurate list of
all leases of real property under which any Loan Party or any of its
Subsidiaries is the lessee, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, lessee, expiration date
and annual rental cost thereof. To the best knowledge of each Loan Party, each
such lease is the legal, valid and binding obligation of the lessor thereof,
enforceable in accordance with its terms.
(dd) Set forth on Schedule 4.01(dd) is a complete and accurate list of
all Material Contracts of each Loan Party and its Subsidiaries, showing as of
the date hereof the parties, subject matter and term thereof. Except as could
not reasonably be expected to have a Material Adverse Effect, each such Material
Contract has been duly authorized, executed and delivered by all parties
thereto, has not been amended or otherwise modified, is in full force and effect
and is binding upon and enforceable against all parties thereto in accordance
with its terms. There exists no material default under any Material Contract by
the Borrower, LICO or any of their respective Subsidiaries party thereto and, to
the best knowledge of each Loan Party, there exists no default under any
Material Contract by any other party thereto.
(ee) Set forth on Schedule 4.01(ee) is a complete and accurate list of
all Investments in excess of $1,000,000 held by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the amount, obligor or issuer and
maturity, if any, thereof.
(ff) Set forth on Schedule 4.01(ff) is a complete and accurate list of
all patents, trademarks, trade names, service marks and copyrights, and all
applications therefor and licenses thereof, of each Loan Party or any of its
Subsidiaries, showing as of the date hereof the jurisdiction in which
registered, the registration number, the date of registration and the expiration
date. Each Loan Party and each of their respective Subsidiaries owns or has
rights to use all patents, trademarks, trade names, service marks, copyrights
and other intellectual property necessary to conduct its business as now or
heretofore conducted by it or proposed to be conducted by it. Each Loan Party
and each of their respective Subsidiaries conducts its business and affairs
without infringement of or interference with any patent, trademark, trade name,
service xxxx, copyright or other intellectual property of any other Person.
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(gg) Each Acquisition Document and each Senior Subordinated Note
Document to which the Borrower or any of its Subsidiaries is a party has been
duly executed and delivered by the Borrower or such Subsidiary, as the case may
be, and, to the best knowledge of the Borrower, each Acquisition Document and
each Senior Subordinated Note Document has been duly executed and delivered by
the parties thereto other than the Borrower and its Subsidiaries and is in full
force and effect. The representations and warranties of the Borrower and each of
its Subsidiaries contained in each Acquisition Document and each Senior
Subordinated Note Document to which the Borrower or such Subsidiary, as the case
may be, is a party are true and correct in all material respects on the date
hereof and will be true and correct in all material respects on the Closing
Date, as if made on such date, and the Administrative Agent and each Lender
Party shall be entitled to rely upon such representations and warranties with
the same force and effect as if they were incorporated in this Agreement and
made to the Administrative Agent and each Lender Party directly as of the date
hereof and the Closing Date. To the best knowledge of the Borrower and each of
its Subsidiaries, the representations and warranties of each other party,
including, without limitation, in the case of the Acquisition Documents, LICO,
to each Acquisition Document and each Senior Subordinated Note Document
contained therein are true and correct in all material respects on the date
hereof and will be true and correct on the Closing Date as if made on such date.
(ii) Except for the fees to be paid to the initial purchasers in
accordance with the Senior Subordinated Note Documents (which fees are fully
disclosed in the prospectus used in connection with the offering and sale of the
Senior Subordinated Notes), no broker's or finder's fees or commissions or any
similar fees or commissions will be payable by the Borrower or any Subsidiary
with respect to the incurrence and maintenance of the Obligations, any other
transaction contemplated by the Loan Documents, the Acquisition Documents or the
Senior Subordinated Note Documents or any services rendered in connection with
any such transactions. The Borrower hereby covenants and agrees to indemnify the
Administrative Agent and each Lender Party against and hold the Administrative
Agent and each Lender Party harmless from any claim, demand or liability for
broker's or finder's fees or similar fees or commissions, including, without
limitation, those of the initial purchasers under the Senior Subordinated Note
Documents and those of any financial advisors to LICO, incurred or alleged to
have been incurred in connection with any of the transactions contemplated
hereby, by the Acquisition Documents or by the Senior Subordinated Note
Documents.
(hh) For as long as any Senior Subordinated Notes, or guaranties
executed in connection therewith, remain outstanding, all principal and interest
in respect of the Advances, and all other Obligations under this Agreement or
any other Loan Document, including, without limitation, (i) Obligations to pay
charges, expenses, fees, attorneys' fees and disbursements, indemnities, Letter
of Credit and Alternative Currency Letter of Credit commissions and other
amounts payable by the Borrower and/or any of the other Loan Parties under this
Agreement or any other Loan Document, (ii) all liabilities and other Obligations
arising out of, based upon or relating to Existing Letters of Credit or any
other Letters of Credit or any Alternative Currency Letters of Credit, and (iii)
all Obligations to reimburse any amounts in respect of any of the foregoing that
any Lender Party, in its sole discretion, may elect to pay or advance on behalf
of any Loan Party, constitute Senior Debt (as defined in the Senior Subordinated
Note Indenture) and Designated Senior Debt (as defined in the Senior
Subordinated Note Indenture). As such, all of the Obligations (and the
Administrative Agent and Lenders) are entitled to the benefits of each of
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the subordination and other provisions contained in the Senior Subordinated Note
Documents which are available in respect of Senior Debt and Designated Senior
Debt (and to the holders thereof), and each of such subordination and other
provisions is in full force and effect and enforceable in accordance with its
terms.
ARTICLE V
COVENANTS OF THE BORROWER AND THE SUBSIDIARIES
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit or Alternative Currency Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the Borrower will:
(a) Compliance with Law. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations
and orders, such compliance to include, without limitation, compliance with
ERISA.
(b) Payment of Taxes, Etc. Timely pay and discharge, and cause each of
its Subsidiaries to timely pay and discharge, (i) all taxes, assessments and
governmental charges or levies imposed upon it or upon its property and (ii) all
lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that the Borrower and its Subsidiaries shall not be required
to pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against the Borrower or any of
its Subsidiaries; and, provided, further, that, if such Lien, individually and
in the aggregate with all such other Liens, does not secure more than $250,000
of taxes, assessments, charges and claims, such Lien may be paid within three
(3) Business Days after the Borrower or such Subsidiary, as the case may be,
obtains knowledge thereof.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits reasonably
necessary for its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in accordance with
the requirements of all Environmental Laws; provided, however, that the Borrower
and its Subsidiaries shall not be required to undertake any such cleanup,
Removal, Remedial or Response action to the extent that its obligation to do so
is being contested in good faith and by proper proceedings and adequate reserves
as reasonably determined by the Administrative Agent are being maintained with
respect to such circumstances.
(d) Preparation of Environmental Reports. The Borrower agrees that the
Administrative Agent may, upon reasonable prior notice, from time to time in its
reasonable discretion, retain, in consultation with the Borrower and at the
Borrower's expense, an
67
independent professional consultant to prepare environmental site assessment
reports for the Borrower or any of its Subsidiaries and/or to review any report
(other than a report properly subject to attorney-client privilege) relating to
Hazardous Materials prepared by or for the Borrower and, upon a reasonable
belief that the Borrower or any of its Subsidiaries has breached any covenant or
representation with respect to environmental matters or that there has been a
material violation of Environmental Laws by the Borrower or one of its
Subsidiaries, the Administrative Agent may conduct its own investigation of such
matter at any facility or property currently owned, leased, operated or used by
the Borrower or one of its Subsidiaries and the Borrower agrees to use its best
efforts to obtain permission for the Administrative Agent's professional
consultant to conduct its own investigation of any such matter at any facility
or property previously owned, leased, operated or used by the Borrower or one of
its Subsidiaries. The Borrower and its Subsidiaries hereby grant to the
Administrative Agent, its employees, consultants and contractors, the right to
enter into or onto the facilities or properties currently owned, leased,
operated or used by the Borrower or its Subsidiaries upon reasonable notice to
the Borrower to perform such assessments on such property as are reasonably
necessary to conduct such a review and/or investigation. Any such investigation
of any such facility or property shall be conducted, unless otherwise agreed to
by the Borrower and the Administrative Agent, during normal business hours and,
to the extent reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at any facility or property or to cause any damage
or loss to any facility or property. The Borrower and the Administrative Agent
hereby acknowledge and agree that any report of any investigation conducted at
the request of the Administrative Agent will be obtained and shall be reasonably
used by the Administrative Agent and Lender Parties for the purpose of internal
credit decisions to monitor and police the Advances and/or protect the
Administrative Agent's and Lender Parties' security interests in the Collateral
and shall not be used by the Administrative Agent or Lender Parties for any
other purpose except as otherwise expressly set forth in this Agreement. The
Administrative Agent and Lender Parties acknowledge and agree that any such
report and any information or data gleaned from or based upon any such report or
investigation conducted by the Administrative Agent, by the Borrower or by both
the Administrative Agent and Borrower acting in cooperation hereunder, is and
will be considered Confidential Information for the purposes of this Agreement.
The Administrative Agent agrees to deliver a copy of any such report to the
Borrower with the understanding that the Borrower acknowledges and agrees that
(i) the Borrower will indemnify and hold harmless the Administrative Agent and
each Lender Party from any costs, losses or liabilities relating to the
Borrower's use of or reliance on such report and (ii) neither the Administrative
Agent nor any Lender Party makes any representation or warranty with respect to
such report.
(e) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
(f) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises.
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(g) Visitation Rights. (i) At any reasonable time and from time to
time, upon reasonable notice, permit the Administrative Agent or any agents or
representatives thereof, together with no more than three (3) designated
representatives of the Required Lenders, to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of
the Borrower and its Subsidiaries, and to discuss the affairs, finances and
accounts of the Borrower and any such Subsidiaries with any of their officers or
directors.
(ii) In the case of the Borrower, meet at least once each
calendar year (and more frequently if the Administrative Agent so requests) with
representatives of the Adminis-
trative Agent and the Lender Parties to discuss the affairs, finances and
accounts of the Borrower and the Subsidiaries.
(iii) If a Default or Event of Default has occurred and is
continuing, permit the Administrative Agent, on behalf of the Lender Parties, to
conduct such commercial finance examinations and/or Collateral audits of the
Borrower and its Subsidiaries as the Administrative Agent may reasonably
request. Such commercial finance examinations and Collateral audits shall be
conducted, in accordance with the Administrative Agent's instructions and
protocol, by, at the Administrative Agent's election, either Ernst & Young LLP
or any other Person reasonably selected by the Administrative Agent.
(h) Keeping of Books. Keep, and cause each of its Subsidiaries to keep,
proper books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the Borrower
and each such Subsidiary in accordance with GAAP.
(i) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties that
are reasonably necessary in the conduct of its business in good working order
and condition, ordinary wear and tear excepted.
(j) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property to
which the Borrower or any of its Subsidiaries is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled, notify the
Administrative Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so except, in any case, where
the failure to do so, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(k) Performance of Material Contracts. Perform and observe, and cause
each of its Subsidiaries to perform and observe, all of the terms and provisions
of each Material Contract to be performed or observed by it, maintain, and cause
each of its Subsidiaries to maintain, each such Material Contract in full force
and effect, and enforce, and cause each of its Subsidiaries to enforce, each
such Material Contract in accordance with its terms.
(l) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such
69
Subsidiary than it would obtain in a comparable arms-length transaction with a
Person not an Affiliate.
(m) Agreement to Grant Additional Security. (i) Promptly, and in any
event within thirty (30) days after the acquisition of assets of the type that
would have constituted Collateral at the date hereof and investments of the type
that would have constituted Collateral on the date hereof (other than assets
with a fair market value of less than $50,000), notify the Administrative Agent
of the acquisition of such assets or investments and, to the extent not already
Collateral in which the Administrative Agent has a perfected security interest
pursuant to the Collateral Documents, such assets and investments will become
additional Collateral hereunder to the extent the Administrative Agent deems the
pledge of such assets practicable (the "Additional Collateral"), and the
Borrower will, and will cause each of its Subsidiaries to, take all necessary
action, including the filing of appropriate financing statements under the
provisions of the UCC, applicable foreign, domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or appropriate
to grant Administrative Agent a perfected Lien in such Collateral (or comparable
interest under foreign law in the case of foreign Collateral) pursuant to and to
the full extent required by the Collateral Documents and this Agreement.
(ii) Promptly, and in any event no later than thirty (30) days
after a request with respect thereto, cause (a) LICO and each of its Domestic
Significant Subsidiaries and such other of LICO's Domestic Subsidiaries as the
Administrative Agent shall reasonably request, and (b) each of the Borrower's
Domestic Significant Subsidiaries and such other of the Borrower's Domestic
Subsidiaries as the Administrative Agent shall reasonably request, to become
party to, or to execute and deliver, a Guaranty guarantying to the
Administrative Agent and the Lenders the prompt payment, when and as due, of all
Obligations of the Loan Parties under the Loan Documents, including all
obligations under any Hedge Agreements entered into by a Lender Party pursuant
to, and in accordance with the terms and conditions of, Section 5.02(b)(v), each
such Guaranty to be in form and substance satisfactory to Administrative Agent.
(iii) Promptly, and in any event no later than thirty (30)
days after a request with respect thereto, pledge to the Administrative Agent,
for the ratable benefit of the Lenders and pursuant to the Security Agreement
(or another pledge or security agreement in form and substance satisfactory to
the Administrative Agent), all (100%) of the capital stock of each of the
Borrower's Domestic Subsidiaries (including, without limitation, of LICO and its
Domestic Subsidiaries) and sixty-five percent (65%) of the capital stock of such
of the Borrower's Foreign Subsidiaries (including, without limitation, of LICO's
Foreign Subsidiaries) as the Administrative Agent shall reasonably request after
consultation with the Borrower.
(iv) Promptly, and in any event no later than thirty (30) days
after a request with respect thereto, pledge to the Administrative Agent, for
the ratable benefit of the Lenders, and pursuant to the Security Agreement (or
another pledge and security agreement in form and substance satisfactory to the
Administrative Agent) sixty-five percent (65%) of the capital stock of all or
such of the Borrower's Foreign Significant Subsidiaries (including, without
limitation, of LICO's Foreign Significant Subsidiaries) as the Administrative
Agent or Required Lenders shall request and, in connection therewith, shall
deliver such legal opinions (including, without limitation, of local counsel
satisfactory to the Administrative Agent) as to perfection and other
70
matters as the Administrative Agent or Required Lenders may request, each such
legal opinion to be in form and substance satisfactory to the Administrative
Agent and its counsel.
(v) Promptly, and in any event no later than thirty (30) days
after a request with respect thereto, cause each Guarantor created or
established after the date hereof to grant to the Administrative Agent, for the
ratable benefit of the Lenders, a first priority Lien on all property (tangible
and intangible) of such Guarantor upon terms similar to those set forth in the
Collateral Documents and otherwise satisfactory in form and substance to
Administrative Agent. The Borrower shall cause each Guarantor, at its own
expense, to become a party to a Security Agreement and an Intellectual Property
Security Agreement and to execute, acknowledge and deliver, or cause the
execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by Administrative Agent to be necessary or desirable for the
creation and perfection of the foregoing Liens (including any additional or
substitute security agreements). The Borrower will cause each such Guarantor to
take all actions requested by Administrative Agent (including, without
limitation, the filing of UCC-1's) in connection with the granting of such
security interests.
(vi) Promptly, and in any event not later than thirty (30)
days after a request with respect thereto, (A) deliver to the Administrative
Agent the original of all instruments, documents and chattel paper, and all
other Collateral of which the Administrative Agent determines it should have
physical possession in order to perfect and protect its security interest
therein, duly pledged, endorsed or assigned to the Administrative Agent without
restriction; (B) obtain landlord waivers, in form and substance satisfactory to
the Administrative Agent, with respect to any Inventory or other Collateral
located at a location that is not owned by the Borrower or a Subsidiary; (C)
deliver to the Administrative Agent warehouse receipts covering any portion of
the Inventory or other Collateral located in warehouses and for which warehouse
receipts are issued; (D) when an Event of Default exists, transfer Inventory to
locations designated by the Administrative Agent; (E) if any Collateral is at
any time in the possession or control of any warehousemen, bailee or any of the
Borrower's agents or processors, notify the Administrative Agent thereof and
notify such person of the Administrative Agent's security interest in such
Collateral and obtain a landlord waiver or bailee letter, in form and substance
satisfactory to the Administrative Agent, from such person and instruct such
person to hold all such Collateral for the Administrative Agent's account
subject to the Administrative Agent's instructions; (F) if at any time any
Inventory or other Collateral is located on any real property of the Borrower
which is subject to a mortgage or other Lien, obtain a mortgagee waiver, in form
and substance satisfactory to the Administrative Agent, from the holder of each
mortgage or other Lien on such real property; and (G) take all such other
actions and obtain all such other agreements as the Administrative Agent may
reasonably deem necessary or desirable in respect of any Collateral.
(vii) The security interests required to be granted pursuant
to this Section shall be granted pursuant to the Collateral Documents or, in the
Administrative Agent's discretion, such other security documentation (which
shall be substantially similar to the Collateral Documents already executed and
delivered by the Borrower) as is satisfactory in form and substance to
Administrative Agent (the "Additional Collateral Documents") and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no
71
other Liens except Liens permitted under Section 5.02(a). The Additional
Collateral Documents and other instruments related thereto shall be duly
recorded or filed in such manner and in such places and at such times as are
required by law to establish, perfect, preserve and protect the Liens, in favor
of Administrative Agent, for the benefit of the Lender Parties, granted pursuant
to the Additional Collateral Documents and, all taxes, fees and other charges
payable in connection therewith shall be paid in full by the Borrower. At the
time of the execution and delivery of Additional Collateral Documents, the
Borrower shall cause to be delivered to Administrative Agent such agreements,
opinions of counsel, and other related documents as may be reasonably requested
by the Administrative Agent or the Required Lenders to assure themselves that
this Section has been complied with.
(n) Performance of Acquisition Documents. Perform and observe, or cause
the relevant Subsidiary to perform and observe, all of the terms and provisions
of each Acquisition Document to be performed or observed by it or such
Subsidiary, maintain each such Acquisition Document in full force and effect,
enforce each such Acquisition Document in accordance with its terms, take all
such action to such end as may be from time to time requested by the Adminis-
trative Agent and, upon request of the Administrative Agent, make to each other
party to each such Acquisition Document such demands and requests for action or
for information and reports as the Borrower or any Subsidiary is entitled to
make under such Acquisition Document.
(o) Cash Concentration Accounts. The Borrower will, and will cause each
of its Subsidiaries to, maintain its main cash concentration accounts with the
Administrative Agent.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit or Alternative Currency Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will not, at any time, without the prior consent of the Required
Lenders:
(a) Liens, Etc.. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien on
or with respect to any of its properties of any character (including, without
limitation, Accounts, Inventory and other Collateral) whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code or any other statute of any jurisdiction, a financing statement that names
the Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file any such financing
statement, or assign, or permit any of its Subsidiaries to assign, any accounts
or other right to receive income, excluding, however, from the operation of the
foregoing restrictions the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described
on Schedule 5.02(a)(iii);
72
(iv) purchase money Liens upon real property or equipment
acquired or held by the Borrower or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such real property or
equipment or to secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such real property or equipment
to be subject to such Liens, or Liens existing on any such real property or
equipment at the time of acquisition (other than any such Liens created in
contemplation of such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to or cover any
property other than the real property or equipment being acquired, constructed
or improved, and no such extension, renewal or replacement shall extend to or
cover any property not theretofore subject to the Lien being extended, renewed
or replaced; and, provided, further, that the aggregate principal amount of the
Debt secured by Liens permitted by this clause (iv) shall not exceed $4,000,000
at any time outstanding; and, provided, further, that any such Debt shall not
otherwise be prohibited by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(B); provided, that no such Lien shall
extend to or cover any Collateral or any assets other than the assets subject to
such Capitalized Leases;
(vi) the replacement, extension or renewal of any Lien
permitted by clauses (iii) through (v) above upon or in the same property
theretofore subject thereto in connection with the replacement, extension or
renewal (without increase in the amount or any change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt other
than:
(i) in the case of the Borrower, Debt incurred pursuant to the
Loan Documents;
(ii) in the case of any of the Subsidiaries of the Borrower,
Debt owed to the Borrower or to a wholly-owned Subsidiary of the Borrower;
provided, that, such Debt is evidenced by a promissory note, such promissory
note is pledged to the Administrative Agent pursuant to the terms of the
Security Agreement and there are no restrictions whatsoever on the ability of
the Subsidiary to repay such Debt;
(iii) unsecured, fully subordinated Debt of the Borrower and
certain of its Domestic Subsidiaries incurred under the Senior Subordinated Note
Indenture and the other Senior Subordinated Note Documents in an aggregate
amount not to exceed $200,000,000 less the amount of any and all prepayments, if
any, of principal thereof after the date of this Agreement;
(iv) in the case of the Borrower and any of its Subsidiaries:
(A) Debt secured by Liens permitted by Section
5.02(a)(iv) not to exceed in the aggregate $4,000,000 at any
time outstanding;
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(B) Capitalized Leases not to exceed in the aggregate
$2,000,000 at any time outstanding;
(C) the Surviving Debt, and any Debt extending the
maturity of, or refunding or refinancing, in whole or in part,
the Surviving Debt; provided, that the terms of any such
extending, refunding or refinancing Debt, and of any agreement
entered into and of any instrument issued in connection
therewith, are consented to in writing by the Administrative
Agent, with the approval of the Required Lenders, and
otherwise permitted by this Agreement and the other Loan
Documents; and, provided, further, that the principal amount
of such Surviving Debt shall not be increased above the
principal amount thereof outstanding on the date hereof, and
the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension,
refunding or refinancing; and
(D) endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course
of business;
(v) in the case of the Borrower, Debt in respect of Hedge
Agreements entered into from time to time in the ordinary course of business by
the Borrower with counterparties that are Hedge Banks in connection with
transactions otherwise expressly permitted hereunder; provided, that (A) the
Borrower shall have notified the Administrative Agent in writing prior to
entering into each and every such Hedge Agreement and (B) each and every such
Hedge Agreement shall be non-speculative in nature (including, without
limitation, with respect to the term and purpose thereof);
(vi) in the case of Yale Germany or Univeyor, Debt of Yale
Germany or Univeyor, as the case may be, in an amount for all such Debt of Yale
Germany and Univeyor not to exceed the Dollar Equivalent of $20,000,000 in the
aggregate at any one time outstanding; provided, that (A) such Debt is incurred
solely by Yale Germany or Univeyor, as the case may be, (B) such Debt is either
unsecured or secured only by the assets of Yale Germany or Univeyor, as the case
may be, and (C) no guaranty or other credit support of any kind is provided by
any Person (including, without limitation, the Borrower or any of its
Subsidiaries) of or for such Debt or any holder thereof, other than an unsecured
guaranty (having terms and conditions acceptable to the Administrative Agent, in
its sole discretion) by the Borrower limited to the amount of Debt incurred by
Yale Germany or Univeyor, as the case may be; and provided, further, that (X)
the Borrower shall notify the Administrative Agent in writing in advance prior
to permitting Yale Germany or Univeyor to incur any Debt under this Section
5.02(b)(vi) and (Y) prior to the Borrower entering into any unsecured guaranty
pursuant to clause (C) above, the Borrower shall have provided a draft copy of
such guaranty to the Administrative Agent for its review and such guaranty shall
be in form and substance satisfactory to the Administrative Agent, in its sole
discretion; and
(vii) in the case of the Borrower, unsecured Debt incurred in
the ordinary course of business for the deferred purchase price of property or
services, maturing within one year from the date created, and aggregating, on a
Consolidated basis, not more than $3,000,000 at any one time outstanding.
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(c) Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligations as lessee (i) for the rental or hire of real or personal property in
connection with any sale and leaseback transaction, or (ii) for the rental or
hire of other real or personal property of any kind under leases or agreements
to lease, including, without limitation, Capitalized Leases having an original
term of one year or more, that would cause the direct and contingent liabilities
of the Borrower and its Subsidiaries, on a Consolidated basis, in respect of all
such obligations to exceed $5,000,000 payable in any period of 12 consecutive
months.
(d) Fundamental Changes. (i) Merge into or consolidate with any Person
or permit any Person to merge into it, or permit any of its Subsidiaries to do
any of the foregoing;
(ii) liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution), convey, sell, assign, lease, transfer or otherwise
dispose of (or agree to do any of the foregoing at any future time) all or
substantially all of its property, business or assets, or permit any of its
Subsidiaries to do any of the foregoing; and
(iii) acquire or permit any Subsidiary to acquire all or
substantially all of the assets of any other Person (including capital stock),
(A) except that the Borrower may consummate the Acquisition in accordance with
the terms and conditions of the LICO Stock Purchase Agreement and (B) except
that the Borrower or any wholly-owned Subsidiary of the Borrower may acquire all
or substantially all of the assets, or all of the capital stock, of any Person
(the "Target") (in each case, a "Permitted Acquisition") subject to the
satisfaction of each of the following conditions:
(1) the Administrative Agent shall have received
at least twenty (20) Business Days' prior
written notice of such proposed Permitted
Acquisition, which notice shall include a
reasonably detailed description of such
proposed Permitted Acquisition;
(2) such Permitted Acquisition shall only
involve a business of the same type engaged
in by the Borrower or one of its
Subsidiaries as of the date hereof, or a
business reasonably incidental thereto, and
such acquired business shall not subject the
Administrative Agent or any Lender to any
regulatory or third party approvals in
connection with the exercise of its rights
and remedies under this Agreement or any
other Loan Document, other than approvals
applicable to the exercise of such rights
and remedies prior to such Permitted
Acquisition;
(3) such Permitted Acquisition shall be
consensual and shall have been approved by
the Target's board of directors;
(4) the sum of all amounts payable in connection
with all Permitted Acquisitions (including
all transaction costs and all Debt,
liabilities and contingent obligations
incurred or assumed in connection
75
therewith or otherwise reflected on a
balance sheet of the Target) shall not
exceed $35,000,000 in the aggregate in any
Fiscal Year;
(5) the business and assets acquired in such
Permitted Acquisition shall be free and
clear of all Liens, other than Permitted
Liens and other non-material Liens
acceptable to the Administrative Agent, in
its reasonable discretion, including, by way
of example, but not of limitation, Liens in
respect of purchase money indebtedness
incurred by the Target in the ordinary
course of business and Liens consisting of
mortgages on real property the amount and
terms of which mortgages are acceptable to
the Administrative Agent, in its sole
discretion;
(6) at or prior to the closing of any Permitted
Acquisition, the Administrative Agent, on
behalf of the Secured Parties, shall be
granted a first priority perfected Lien
(subject only to Liens expressly permitted
under clause (5) immediately above) in all
assets of the Target and each of its
Domestic Significant Subsidiaries and in all
of the Target's and each of its Significant
Subsidiaries' capital stock, the Target and
each of its Domestic Significant
Subsidiaries shall each become a party to
the Guaranty and the Borrower, each of the
Borrower's Subsidiaries and the Target and
each of the Target's Subsidiaries shall each
have executed and delivered all such
Collateral Documents and other documents and
taken all such actions as may be required by
the Administrative Agent in connection
therewith;
(7) at the time of such Permitted Acquisition
and after giving effect thereto, including,
without limitation, after giving pro forma
effect thereto for purposes of each of the
Financial Covenants set forth in Section
5.04 of this Agreement, no Default or Event
of Default shall have occurred and be
continuing or would result therefrom; and
(8) prior to the date of such Permitted
Acquisition, the Administrative Agent shall
have received, in form and substance
satisfactory to the Administrative Agent,
copies of the acquisition agreement and all
related agreements and instruments, and all
legal opinions, officer's certificates and
other certificates, lien search results and
other information and documents reasonably
requested by the Administrative Agent.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets or grant any option or other right to purchase, lease or
otherwise acquire any assets, except:
(i) sales of Inventory in the ordinary course of business;
76
(ii) sales of obsolete equipment in the ordinary course of
business;
(iii) the sale of any asset by the Borrower or any of its
Subsidiaries (other than a sale of Inventory or a sale of Receivables) so long
as (A) the purchase price paid to the Borrower or such Subsidiary for such asset
shall be no less than the fair market value of such asset at the time of such
sale, (B) the purchase price for such asset shall be paid to the Borrower or
such Subsidiary solely in cash and (C) the aggregate purchase price paid to the
Borrower and all of its Subsidiaries for such asset and all other assets sold by
the Borrower and its Subsidiaries pursuant to this clause (iii) since the date
of this Agreement shall not exceed $25,000,000 in the aggregate;
(iv) the sale of all of the capital stock, or all or
substantially all of the assets, of Minitec and/or Mechanical Products;
provided, that (A) the purchase price paid to the Borrower in connection with
any such sale shall be no less than the fair market value of Minitec and/or
Mechanical Products, as the case may be, and (B) the purchase price is paid to
the Borrower at least 75% in cash; and
provided, further, that in the case of sales of assets pursuant to Section
5.02(e)(ii), (iii) or (iv) above, the Borrower shall, on the date of receipt
thereof, apply the entire Net Cash Proceeds from such sale in accordance with
Section 2.06(b)(ii).
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person other than:
(i) Investments by the Borrower and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and described on Schedule
5.02(f)(i), and additional investments in wholly-owned Subsidiaries of the
Borrower in an aggregate amount invested not to exceed $7,000,000 in the
aggregate in any Fiscal Year; provided, however, that no more than an aggre-
gate amount equal to $3,000,000 shall be invested (in addition to investments
outstanding on the date hereof and described on Schedule 5.02(f)(i))in
wholly-owned Foreign Subsidiaries in any Fiscal Year; and, provided, further,
that with respect to Investments in any newly acquired or created wholly-owned
Subsidiary, (A) any such Subsidiary which is a Domestic Significant Subsidiary
shall become a Guarantor pursuant to the terms of the Guaranty and an additional
grantor pursuant to the terms of the Security Agreement and Intellectual
Property Security Agreement and (B) the Borrower shall otherwise comply with the
provisions of Section 5.01(m);
(ii) Loans and advances to officers and other employees in the
ordinary course of the business of the Borrower and its Subsidiaries in an
aggregate principal amount not to exceed $500,000 at any time outstanding;
(iii) Investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(iv) Investments consisting of intercompany Debt permitted
under Section 5.02(b)(ii); and
77
(v) Investments existing on the date hereof and described on
Schedule 5.02(f)(vii) hereto.
(g) Dividends, Etc. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its capital stock or any
warrants, rights or options to acquire such capital stock, now or hereafter
outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit any of its
Subsidiaries to do any of the foregoing or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of the Borrower or any warrants, rights or options to acquire such capital
stock or to issue or sell any such capital stock or any warrants, rights or
options to acquire such capital stock, except:
(i) so long as no Default or Event of Default shall have
occurred and be continuing, or would result therefrom, the Borrower may declare
and pay regular quarterly dividends in cash on its common stock in an aggregate
amount not to exceed $10,000,000 in any Fiscal Year,
(ii) the Borrower may declare and pay dividends and
distributions payable solely in common stock of the Borrower,
(iii) a Subsidiary of the Borrower may declare and pay
dividends and distributions to the Borrower,
(iv) for issuances of stock expressly permitted by Section
5.02(r).
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(i) Charter Amendments. Amend, or permit any of its Subsidiaries to
amend, its certificate or articles of incorporation or bylaws.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by GAAP (which required changes may be
made on a timely basis), or (ii) its Fiscal Year.
(k) Prepayments, Etc. of Debt. (i) Prepay, redeem, purchase, call,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, including, without limitation, as a result of an asset sale, change of
control or any other event or occurrence, or make any payment in violation of
any subordination terms of, any Debt, including, without limitation, the Senior
Subordinated Notes, or make any payment of principal, interest or liquidated
damages in respect of the Senior Subordinated Notes, other than (A) as expressly
provided in Schedule 4.01(aa), (B) the prepayment of Advances in accordance with
the terms of this Agreement, (C) so long as no Default or Event of Default shall
have occurred and be continuing, or would result therefrom, regularly scheduled
payments of interest (but not of principal) in respect of the Senior
Subordinated Notes in accordance with the terms and conditions of the Senior
Subordinated Note
78
Indenture, (D) so long as no Default or Event of Default shall have occurred and
be continuing, or would result therefrom, the redemption of up to 35% of the
aggregate original principal amount of the Senior Subordinated Notes plus
accrued but unpaid interest thereon in accordance with the terms and conditions
of the Senior Subordinated Note Indenture with the net proceeds of one or more
public offerings of common stock of the Borrower, and (E) so long as no Default
or Event of Default shall have occurred and be continuing, or would result
therefrom, the payment of Liquidated Damages (as such term is defined in the
Senior Subordinated Note Documents) in an aggregate amount not to exceed
$150,000, it being understood that any payment of Liquidated Damages which
causes such aggregate amount to exceed $150,000 shall constitute an immediate
Event of Default hereunder or (ii) amend, modify or change in any manner any
term or condition of any Existing Debt or Surviving Debt, including, without
limitation, the Senior Subordinated Notes, or (iii) permit any of its
Subsidiaries to do any of the foregoing other than to repay any Debt payable to
the Borrower.
(l) Amendment, Etc. of Acquisition Documents or Senior Subordinated
Note Documents. Cancel or terminate any Acquisition Document or Senior
Subordinated Note Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or condition
of any Acquisition Document or Senior Subordinated Note Document or give any
consent, waiver or approval thereunder, waive any default under or any breach of
any term or condition of any Acquisition Document or Senior Subordinated Note
Document or take any other action in connection with any Acquisition Document or
Senior Subordinated Note Document that would impair the value of the interests
or rights of the Borrower or any of its Subsidiaries thereunder or that would
impair the interests or rights of the Administrative Agent or any Lender Party,
or permit any of its Subsidiaries to do any of the foregoing.
(m) Amendment, Etc. of Material Contracts. Cancel or terminate any
Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any consent,
waiver or approval thereunder, waive any default under or breach of any Material
Contract or take any other action in connection with any Material Contract that
would materially impair the value of the interests or rights of the Borrower or
any of its Subsidiaries thereunder or that would materially impair the interests
or rights of the Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing.
(n) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its properties
or assets other than as provided in the Loan Documents.
(o) Partnerships, New Subsidiaries. (i) Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, or (ii) create any new Subsidiary, unless such newly
created Subsidiary shall become a Guarantor pursuant to the terms of the
Guaranty and an additional grantor pursuant to the terms of the Security
Agreement and Intellectual Property Security Agreement and all shares of the
capital stock of such new Subsidiary are pledged to the Administrative Agent
pursuant to the Pledge Agreement.
79
(p) Speculative Transactions. Engage, or permit any of its Subsidiaries
to engage, in any transaction involving commodity options or futures contracts
or derivatives or any similar speculative transactions.
(q) Capital Expenditures. Make, or permit any of its Subsidiaries to
make, any Capital Expenditures in excess of an amount equal to $25,000,000 in
the aggregate in any Fiscal Year.
(r) Issuance of Stock. (i) The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, issue, sell, assign, pledge
or otherwise encumber or dispose of any shares of capital stock of the Borrower
or any Subsidiary of the Borrower, except (x) to the Borrower, (y) to qualify
directors if required by applicable law or (z) as set forth in Schedule 5.02(r),
and except for issuances of common stock for cash by the Borrower to the extent
expressly permitted under Section 5.02(r)(ii) below.
(ii) The Borrower shall not issue any capital stock, except
for issuances of its common stock for cash in one or more underwritten public
offerings registered under the Securities Act of 1933, as amended, where no
Default or Event of Default either exists or, after giving effect to such
issuance, will exist.
SECTION 5.03. Reporting Requirements. So long as any Advance shall
remain unpaid, any Letter of Credit or Alternative Currency Letter of Credit
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the Borrower will furnish to the Administrative Agent and Lender Parties:
(a) Default Notice. As soon as possible and in any event within two (2)
Business Days after obtaining knowledge of the occurrence of any Default or any
event, development or occurrence reasonably likely to have a Material Adverse
Effect, a statement of the chief financial officer of the Borrower setting forth
details of such Default or event, development or occurrence and the action that
the Borrower has taken and proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any event within
forty-five (45) days after the end of each of the first, second and third fiscal
quarters of each Fiscal Year, and as soon as available and in any event within
ninety (90) days after the end of the fourth fiscal quarter of each Fiscal Year,
a Consolidated balance sheet of the Borrower and its Subsidiaries, and
consolidating balance sheets of the Borrower and its Significant Subsidiaries,
as of the end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries, and
consolidating statements of income and consolidating statements of cash flows of
the Borrower and its Significant Subsidiaries, for the period commencing at the
end of the previous fiscal quarter and ending with the end of such fiscal
quarter and a Consolidated statement of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries, and consolidating statements of
income and consolidating statements of cash flows of the Borrower and its
Significant Subsidiaries, for the period commencing at the end of the previous
Fiscal Year and ending with the end of such fiscal quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
period of the preceding Fiscal Year and the corresponding figures from the
budgeted forecasts delivered pursuant to Section 5.03(e) for such period and for
the Fiscal Year which includes such period, all in reasonable detail and duly
certified by the chief financial
80
officer of the Borrower as having been prepared in accordance with GAAP (subject
to normal year-end audit adjustments), together with (i) a certificate of said
officer stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with respect thereto and
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the financial
covenants contained in Sections 5.04(a) through (d), provided, that in the event
of any change in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance
with Section 5.04, a statement of reconciliation conforming such financial
statements to GAAP. In connection with the Borrower's delivery of all quarterly
financial statements pursuant to the foregoing, the Borrower shall also furnish
to the Administrative Agent and Lender Parties a contract progress report with
respect to each and every ongoing contracted for project in process of the
Borrower, LICO or any of their respective Subsidiaries which involves aggregate
payments during the life of such contract in excess of $5,000,000. All such
contract in progress reports shall be prepared in a manner and presented in a
form reasonably acceptable to the Administrative Agent.
(c) Annual Financials. As soon as available and in any event within one
hundred and five (105) days after the end of each Fiscal Year, a copy of the
annual audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries, and consolidating balance sheets of the Borrower and its
Significant Subsidiaries, as of the end of such Fiscal Year and a Consolidated
statement of income and a Consolidated statement of cash flows of the Borrower
and its Subsidiaries, and consolidating statements of income and consolidating
statements of cash flows of the Borrower and its Significant Subsidiaries, for
such Fiscal Year, in each case setting forth in comparative form the
corresponding figures for the prior Fiscal Year and the corresponding figures
from the budgeted forecasts delivered pursuant to Section 5.03(e) for such
Fiscal Year and in each case accompanied (in the case of such Consolidated
financial statements) by an opinion acceptable to the Administrative Agent, with
the consent of the Required Lenders, of Ernst & Young LLP or other independent
certified public accountants of recognized national standing acceptable to the
Administrative Agent, with the consent of the Required Lenders, together with
(i) a letter of such accounting firm to the Administrative Agent and Lender
Parties stating that in the course of the regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted by such accounting firm
in accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or if,
in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by such
accountants in determining, as of the end of such Fiscal Year, compliance with
the covenants contained in Sections 5.04(a) through (d), provided, that in the
event of any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the determination
of compliance with Section 5.04, a statement of reconciliation conforming such
financial statements to GAAP and (iii) a certificate of the chief financial
officer of the Borrower stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take with
respect thereto.
81
(d) Pro Forma Financials. In connection with the delivery of all
financial statements delivered under Section 5.03(b) or 5.03(c) above, pro forma
financial statements reflecting the acquisition of LICO and all other
acquisitions made by the Borrower or one of its Subsidiaries at any time during
such period, such pro forma financials to be prepared both (i) for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such fiscal quarter or Fiscal Year, as the case may be, as if the acquisition of
LICO and all such other acquisitions had occurred at the beginning of such
period and (ii) for the corresponding period of the preceding Fiscal Year,
setting forth the corresponding figures for such corresponding period of the
preceding Fiscal Year, as if the acquisition of LICO and all such other
acquisitions had occurred at the beginning of such corresponding period. All pro
forma balance sheets shall be prepared as if the acquisition of LICO and all
such other acquisitions had occurred as of the beginning of the period ending on
the relevant balance sheet date, and all pro forma statements of income and pro
forma statements of cash flows shall be prepared as if the acquisition of LICO
and all such other acquisitions had occurred at the beginning of the relevant
periods reflected therein. All pro forma financial statements shall be prepared
on a basis and presented in a form reasonably acceptable to the Administrative
Agent. The requirements set forth in this Section 5.03(d) to deliver pro forma
financial statements with respect to the acquisition of LICO or any other
acquisition made by the Borrower or one of its Subsidiaries, as the case may be,
shall continue until such time as the acquisition of LICO or such other
acquisition, as the case may be, has been fully reflected for all relevant time
periods in the financial statements delivered under Section 5.03(b) or 5.03(c)
above, as appropriate, whereupon the requirements to deliver pro forma financial
statements with respect to the acquisition of LICO or such other acquisition, as
the case may be, shall cease with respect to the acquisition of LICO or such
other acquisition, as the case may be, only, but shall continue with respect to
any and all acquisitions of the Borrower or one of its Subsidiaries other than
the acquisition of LICO or such other acquisition, as the case may be.
(e) Annual Forecasts. As soon as available and in any event no later
than sixty (60) days after the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form reasonably satisfactory to the
Administrative Agent, of balance sheets, income statements and cash flow
statements on a quarterly basis for the Fiscal Year following such Fiscal Year
then ended.
(f) ERISA Events and ERISA Reports. (i) Promptly and in any event
within twenty (20) days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the chief
financial officer of the Borrower describing such ERISA Event and the action, if
any, that such Loan Party or such ERISA Affiliate has taken and proposes to take
with respect thereto and (ii) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan pursuant to
Section 4010 of ERISA, a copy of such records, documents and information.
(g) Plan Terminations. Promptly and in any event within five (5)
Business Days after receipt thereof by any Loan Party or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan or correspondence from the
PBGC indicating it is considering termination of any Plan.
82
(h) Actuarial Reports. Promptly upon receipt thereof by any Loan Party
or any ERISA Affiliate, a copy of the annual actuarial valuation report for each
Plan the funded current liability percentage (as defined in Section 302(d)(8)(B)
of ERISA) of which is less than 75% or the unfunded current liability (as
defined in Section 302(d)(8)(A) of ERISA) of which exceeds $2,000,000.
(i) Plan Annual Reports. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
the filing thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with respect to
each Plan.
(j) Annual Plan Summaries. As soon as available and in any event within
one hundred and five (105) days after the end of each Fiscal Year, an annual
summary of actuarial valuation and other information with respect to each Plan
in form, substance and detail reasonably satisfactory to the Administrative
Agent.
(k) Multiemployer Plan Notices. Promptly and in any event within five
(5) Business Days after receipt thereof by any Loan Party or any ERISA Affiliate
from the sponsor of a Multiemployer Plan, copies of each notice concerning, or
other correspondence with respect to, (i) the imposition of Withdrawal Liability
by any such Multiemployer Plan, (ii) the reorganization or termination, within
the meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the
amount of liability incurred, or that may be incurred, by such Loan Party or any
ERISA Affiliate in connection with any event described in clause (i) or (ii).
(l) Litigation. Promptly after the commencement thereof, or any
material development therein, notice of all material actions, suits,
investigations, litigation and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, Federal,
state, local or foreign, affecting any Loan Party or any of its Subsidiaries.
Without limiting the generality of the foregoing, promptly after the occurrence
thereof, notice of any material adverse change in the status, or the financial
effect on any Loan Party or any of its Subsidiaries, of any litigation disclosed
on Schedule 4.01(i).
(m) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any Loan
Party or any of its Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration statements, that any
Loan Party or any of its Subsidiaries files with the Securities and Exchange
Commission or any other governmental authority, or with any national securities
exchange.
(n) Creditor Reports. Promptly after the furnishing thereof, copies of
any statement or report furnished to any other holder of the securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture,
loan or credit agreement or similar agreement or instrument and not otherwise
required to be furnished to the Lender Parties pursuant to any other clause of
this Section 5.03.
(o) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of its
Subsidiaries under or pursuant to any Acquisition Document, Senior Subordinated
Note Document or Material Contract or
83
indenture, loan or credit agreement or similar agreement or instrument regarding
or related to any breach or default by any party thereto or any event that could
materially impair the value of the interests or the rights of any Loan Party or
any of its Subsidiaries or otherwise have a Material Adverse Effect and copies
of any amendment, modification or waiver of any provision of any Acquisition
Document, Senior Subordinated Note Document, Material Contract or loan or credit
agreement or similar agreement or indenture and, from time to time upon request
by the Administrative Agent, such information and reports regarding the
foregoing as the Administrative Agent may reasonably request.
(p) Revenue Agent Reports. Within ten (10) days after receipt, copies
of all Revenue Agent Reports (Internal Revenue Service Form 886), or other
written proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth any adjustments to the Federal income tax liability of the
affiliated group (within the meaning of Section 1504(a)(1) of the Internal
Revenue Code) of which the Borrower is a member aggregating $250,000 or more.
(q) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect.
(r) Real Property. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report supplementing Schedules 4.01(bb) and 4.01(cc) hereto,
including an identification of all real and leased property disposed of by the
Borrower or any of its Subsidiaries during such Fiscal Year, a list and
description (including the street address, county or other relevant
jurisdiction, state, record owner and, in the case of leases of property,
lessor, lessee, expiration date and annual rental cost thereof) of all real
property acquired or leased during such Fiscal Year and a description of such
other changes in the information included in such Schedules as may be necessary
for such Schedules to remain accurate and complete in all respects.
(s) Insurance. As soon as available and in any event within thirty (30)
days after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan Party and
its Subsidiaries and containing such additional information as the
Administrative Agent may reasonably request.
(t) Management Letters. As soon as available and in any event within
five (5) Business Days after the receipt thereof, copies of any "management
letter" or similar letter received by the Borrower or its Board of Directors (or
any Committee thereof) from its independent public accountants.
(u) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries or the Collateral as the
Administrative Agent or any Lender Party (through the Administrative Agent) may
from time to time reasonably request.
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SECTION 5.04. Financial Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit or Alternative Currency Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will:
(a) Funded Debt to EBITDA Ratio. Maintain as of the end of each fiscal
quarter of the Borrower a ratio of (i) Consolidated Funded Debt to (ii) EBITDA
for the most recently completed four fiscal quarters of the Borrower of not more
than the ratio set forth below:
Four Fiscal Quarters ending on: Ratio
June 30, 1998 4.75 to 1.0
September 30, 1998 4.75 to 1.0
December 31, 1998 4.75 to 1.0
March 31, 1999 3.75 to 1.0
June 30, 1999 3.75 to 1.0
September 30, 1999 3.75 to 1.0
December 31, 1999 3.75 to 1.0
March 31, 2000 3.25 to 1.0
June 30, 2000 3.25 to 1.0
September 30, 2000 3.25 to 1.0
December 31, 2000 3.25 to 1.0
March 31, 2001 and each fiscal
quarter end thereafter 3.00 to 1.0
(b) Interest Coverage Ratio. Maintain as of the end of each fiscal
quarter of the Borrower a ratio of (i) Consolidated EBITDA for the most recently
completed four fiscal quarters of the Borrower to (ii) Interest Expense of the
Borrower and its Subsidiaries for such period of not less than 3.0 to 1.0.
(c) Fixed Charge Coverage Ratio. Maintain as of the end of each fiscal
quarter of the Borrower a ratio of (i) Consolidated EBITDA for the most recently
completed four fiscal quarters of the Borrower, less Capital Expenditures made
during such period, less the aggregate amount of federal, state, local and
foreign taxes paid by the Borrower and its Subsidiaries during such period, less
cash dividends paid by the Borrower to the holders of its common stock during
such period, to the (ii) sum of (x) cash interest paid or payable by the
Borrower and its Subsidiaries on all Debt, including, without limitation, the
Senior Subordinated Notes, during such period, plus (y) cash rentals paid or
payable under Capitalized Leases during such period, plus (z) principal amounts
of all Funded Debt paid or payable by the Borrower and its Subsidiaries during
such period, of not less than the ratio set forth below for such period:
Four Fiscal Quarters ending on: Ratio
------------------------------ -----
June 30, 1998 1.40 to 1.0
September 30, 1998 1.40 to 1.0
December 31, 1998 1.40 to 1.0
March 31, 1999 and each fiscal
quarter ending thereafter 1.50 to 1.0
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(d) Minimum Net Worth. Maintain, as of the last day of each fiscal
quarter, an excess of Consolidated total assets over Consolidated total
liabilities of the Borrower and its Subsidiaries of not less than (i) the
greater of (A) 85% of the excess of Consolidated total assets over Consolidated
total liabilities of the Borrower and its Subsidiaries at March 31, 1998 and (B)
$155,000,000, plus (ii) 75% of Consolidated positive net income (and excluding
100% of Consolidated net losses) of the Borrower and its Subsidiaries since
March 31, 1998 to and including each date of determination computed on a
cumulative basis for said entire period.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following ("Events of
Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail to
pay any interest on any Advance, or any Loan Party shall fail to make any other
payment under any Loan Document, in each case under this clause (ii) within two
(2) Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made or confirmed; or
(c) the Borrower shall fail to perform or observe any term, covenant or
agreement contained in Xxxxxxx 0.00, 0.00(x), (x), (x), (x), (x), (x) or (n),
5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed
if such failure shall remain unremedied for thirty (30) days after the earlier
of the date on which (i) a Responsible Officer of any Loan Party becomes aware
of such failure or (ii) written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect of
any Debt, including, without limitation, the Senior Subordinated Notes, that is
outstanding in a principal or notional amount of at least $1,000,000 either
individually or in the aggregate (but excluding Debt outstanding hereunder) of
such Loan Party or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise); or any event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt, in each case
if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt or otherwise to cause, or to permit
the holder thereof to cause, such Debt to mature; or any such Debt shall be
declared to be due and payable or required to be prepaid or redeemed (other than
by a regularly scheduled required prepayment or redemption), purchased, called
or defeased, or an offer to prepay, redeem,
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purchase, call or defease such Debt shall be required to be made, in each case
prior to the stated maturity thereof, including, without limitation, as a result
of an asset sale, a change of control or any other event or occurrence; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of thirty (30) days or any of
the actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur, or any Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (f); or
(g) any judgment or order for the payment of money in excess of
$1,000,000 (other than such a judgment or order which is fully covered by
insurance for which the appropriate insurer has acknowledged responsibility in
writing) shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be a period of seven (7)
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect; or
(i) any material provision of any Loan Document after delivery thereof
shall for any reason cease to be valid and binding on or enforceable against any
Loan Party which is party to it, or any such Loan Party shall so state in
writing; or
(j) any Collateral Document after delivery thereof shall for any reason
cease to or otherwise not create a valid and perfected first and only priority
lien on and security interest in the Collateral purported to be covered thereby;
or
(k) (i) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3, of the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 15% or more of the
combined voting power of all Voting Stock of the Borrower; (ii) the individuals
who at the date hereof were Directors of the Borrower (together with any other
Director whose election to the Board of Directors of the Borrower (or whose
nomination by the Board of Directors for election by the stockholders of the
Borrower) was approved by a
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vote of at least a majority of the Directors then in office who either were
directors at the date hereof or whose election was previously so approved) shall
cease for any reason to constitute a majority of the Board of Directors of the
Borrower; or (iii) any Person or two or more Persons acting in concert shall
have acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
the power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower; or
(1) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of the last such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Loan Parties and the ERISA Affiliates related to such ERISA
Events) exceeds $2,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $500,000 or requires payments exceeding $200,000 per
annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $200,000; or
(o) there shall occur in the reasonable judgment of the Required
Lenders any Material Adverse Change; or
(p) the aggregate amount of the Revolving Credit Advances plus the
Assigned Dollar Value of Alternative Currency Revolving Credit Advances plus
Swing Line Advances plus Letter of Credit Advances plus the Assigned Dollar
Value of all Alternative Currency Letter of Credit Advances plus the aggregate
Available Amount of all Letters of Credit and Alternative Currency Letters of
Credit outstanding shall at any time exceed the Revolving Credit Facility, which
excess is not eliminated by the Borrower's immediate prepayment of then
outstanding Swing Line Advances, Revolving Credit Advances and Alternative
Currency Revolving Credit Advances in an amount at least equal to such excess;
or
(q) the aggregate amount of the Assigned Dollar Value of Alternative
Currency Revolving Credit Advances plus the Assigned Dollar Value of all
Alternative Currency Letter of Credit Advances plus the aggregate Available
Amount of all Alternative Currency Letters of Credit outstanding shall at any
time exceed the Alternative Currency Revolving Credit Facility, which excess is
not eliminated by the Borrower's immediate prepayment of then outstanding
Alternative Currency Revolving Credit Advances in an amount at least equal to
such excess; or
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(r) for as long as any Senior Subordinated Notes, or guaranties
executed in connection therewith, remain outstanding, all or any part of the
principal or interest in respect of the Advances, or other Obligations under
this Agreement or any other Loan Document, including, without limitation, (i)
Obligations to pay charges, expenses, fees, attorneys' fees and disbursements,
indemnities, Letter of Credit and Alternative Currency Letter of Credit
commissions and other amounts payable by the Borrower and/or any of the other
Loan Parties under this Agreement or any other Loan Document, (ii) all
liabilities and other Obligations arising out of, based upon or relating to
Existing Letters of Credit or any other Letters of Credit or any Alternative
Currency Letters of Credit, and (iii) Obligations to reimburse any amount in
respect of any of the foregoing that any Lender Party, in its sole discretion,
may elect to pay or advance on behalf of any Loan Party, shall cease to
constitute Senior Debt (as defined in the Senior Subordinated Note Indenture)
and Designated Senior Debt (as defined in the Senior Subordinated Note
Indenture). Or, as such, any of the Obligations (or the Administrative Agent or
Lenders) shall cease to be entitled to the benefit of any of the subordination
and other provisions which are available in respect of Senior Debt and
Designated Senior Debt (and to the holders thereof) or any of such subordination
or other provisions shall cease to be in full force and effect and enforceable
in accordance with its terms;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each appropriate Lender (other than the Commitment in
respect of Letter of Credit Advances or Alternative Currency Letter of Credit
Advances by the Issuing Bank or a Revolving Credit Lender pursuant to Section
2.03(c) or Section 2.03(d), as appropriate, and Swing Line Advances by a
Revolving Credit Lender pursuant to Section 2.02(c)) and of the Issuing Bank to
issue Letters of Credit and Alternative Currency Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, (A) by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Notes, all such interest and all such other amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower and (B) by notice to each party required under the terms of any
agreement in support of which a Standby Letter of Credit (whether a Letter of
Credit or an Alternative Currency Letter of Credit) is issued, request that all
Obligations under such agreement be declared to be due and payable; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to any Loan Party or any of its Subsidiaries under the Federal
Bankruptcy Code, (x) the obligation of each Lender to make Advances (other than
Letter of Credit Advances or Alternative Currency Letter of Credit Advances by
the Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) or
Section 2.03(d), as appropriate, and Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.02(c)) and of the Issuing Bank to issue Letters of
Credit and Alternative Currency Letters of Credit shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit and
Alternative Currency Letters of Credit upon Default. If any Event of Default
shall have occurred and be continuing, the Administrative Agent may, or shall at
the request of the Required Lenders, irrespective of
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whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrower to, and forthwith upon such demand the Borrower
will, pay to the Administrative Agent on behalf of the Lender Parties in same
day funds at the Administrative Agent's office designated in such demand, for
deposit in the L/C Cash Collateral Account, an amount equal to the aggregate
Available Amount of all Letters of Credit and Alternative Currency Letters of
Credit then outstanding. If at any time the Administrative Agent determines that
any funds held in the L/C Cash Collateral Account are subject to any right or
claim of any Person other than the Administrative Agent and the Lender Parties
or that the total amount of such funds is less than the aggregate Available
Amount of all Letters of Credit and Alternative Currency Letters of Credit, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, the Issuing Bank, the Swing Line Bank and any Hedge
Bank) hereby appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement, any other Loan Document or applicable law. The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (b) may consult
with legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender Party and
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shall not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Fleet and Affiliates. With respect to its Commitments,
the Advances made by it and the Notes issued to it, Fleet shall have the same
rights and powers under the Loan Documents as any other Lender Party and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender Party" or "Lender Parties" shall, unless otherwise expressly indicated,
include Fleet in its individual capacity. Fleet and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person who may do business
with or own securities of any Loan Party or any such Subsidiary, all as if Fleet
were not the Administrative Agent and without any duty to account therefor to
the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify the Administrative Agent (to the extent not promptly reimbursed by
the Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of any of
the Loan Documents or any action taken or omitted by the Administrative Agent
under any of the Loan Documents; provided, however, that no Lender Party shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the
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extent that the Administrative Agent is not promptly reimbursed for such costs
and expenses by the Borrower.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of any of the Loan Documents or any action taken or
omitted by the Issuing Bank under any of the Loan Documents; provided, however,
that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Issuing Bank promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 8.04, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower.
(c) For purposes of Sections 7.05(a) and 7.05(b), the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (b) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit and Alternative Currency Letters of Credit outstanding at such time and
(c) their respective Unused Revolving Credit Commitments at such time; provided,
that the aggregate principal amount of Swing Line Advances owing to the Swing
Line Bank and Letter of Credit Advances and Alternative Currency Letter of
Credit Advances owing to the Issuing Bank shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments. In the event that any Defaulted Advance shall be owing by
any Defaulting Lender at any time, such Lender Party's Commitment with respect
to the Facility under which such Defaulted Advance was required to have been
made shall be considered to be unused for purposes of this Section 7.05 to the
extent of the amount of such Defaulted Advance. The failure of any Lender Party
to reimburse the Administrative Agent or the Issuing Bank, as the case may be,
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Parties to the Administrative Agent or the Issuing Bank, as the case
may be, as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse the Administrative Agent or the Issuing Bank,
as the case may be, for its ratable share of such amount, but no Lender Party
shall be responsible for the failure of any other Lender Party to reimburse the
Administrative Agent or the Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreements of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Administrative Agents. The Administrative Agent
may resign as to any or all of the Facilities at any time by giving written
notice thereof to the Lender Parties and the Borrower and may be removed as to
all of the Facilities at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders
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shall have the right to appoint a successor Administrative Agent as to such of
the Facilities as to which the Administrative Agent has resigned or been
removed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within thirty
(30) days after the retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Lender
Parties, appoint a successor Administrative Agent, which shall be a Lender which
is a commercial bank organized or licensed under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent as to all of the Facilities and
upon the execution and filing or recording of such financing statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations under this Agreement and the
other Loan Documents. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent as to less than all of the
Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent as to any of the Facilities under this
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the Initial Extension of Credit, Section 3.02; (ii) change
the
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number of Lenders or the percentage of (x) the Commitments, (y) the aggregate
unpaid principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit or Alternative Currency Letters of Credit that, in
each case, shall be required for the Lenders or any of them to take any action
hereunder; (iii) release any material portion of the Collateral in any
transaction or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on any material portion of the
Collateral in any transaction or series of related transactions to secure any
liabilities or obligations other than Obligations owing to the Secured Parties
under the Loan Documents; (iv) release any of the Guarantors from their
Guaranty, other than the release of the Guaranty of Mechanical Products and/or
Minitec (and the release from any Collateral Document executed and delivered by
Mechanical Products and/or Minitec of Mechanical Products and/or Minitec, as
appropriate) upon the sale of all of the capital stock, or all or substantially
all of the assets, of Mechanical Products and/or Minitec, as applicable, in
accordance with the terms and conditions of this Agreement; (v) amend this
Section 8.01; or (vi) limit the liability of any Loan Party under any of the
Loan Documents and (b) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender affected thereby, (i)
increase the Commitments of such Lender or subject such Lender to any additional
obligations, (ii) reduce the principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender, (iii)
postpone any date fixed for any payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender or (iv) waive or change the order or method of application of any
prepayment set forth in Section 2.06 in any manner that materially affects such
Lender; provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Required Alternative Currency Lenders, in addition to
the Lenders required above to take such action, affect the rights or obligations
of the Alternative Currency Revolving Credit Lenders under this Agreement or any
other Loan Document; provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by the Swing Line Bank or the Issuing Bank,
as the case may be, in addition to the Lenders required above to take such
action, affect the rights or obligations of the Swing Line Bank or the Issuing
Bank, as the case may be, under this Agreement or any other Loan Document; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent, in addition to the Lenders required
above to take such action, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document.
SECTION 8.02. Notices Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
(i) if to the Borrower:
Columbus XxXxxxxx Corporation
000 Xxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx.
Executive Vice President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Phillips, Lytle, Xxxxxxxxx, Xxxxxx & Xxxxx
0000 Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(ii) if to the Administrative Agent:
Fleet National Bank
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Corporate Banking Group
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(iii) if to any Initial Lender or the Initial Issuing Bank, at
its Domestic Lending Office specified opposite its name on Schedule I
attached hereto.
(iv) if to any other Lender Party, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it
became a Lender Party;
or, as to the Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when mailed by certified mail, return receipt
requested, telegraphed, telecopied or telexed, be effective three (3) days after
mailing, upon delivery to the telegraph company, upon transmission by telecopier
or upon confirmation by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of this Agreement, the Notes or any other
Loan Document or of any Exhibit hereto or thereto or of any amendment or waiver
of any provision thereof shall be as effective as delivery of a manually
executed counterpart thereof.
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SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note or under any other Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or in equity.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without limitation,
(A) all due diligence, collateral review, syndication (including printing,
distribution and bank meetings), transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses, and (B) the reasonable fees and expenses of counsel for the
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests under the Loan Documents, with
respect to negotiations with any Loan Party or with other creditors of any Loan
Party or any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of the
Administrative Agent and the Lender Parties in connection with the enforcement
of the Loan Documents, whether in any action, suit or litigation or any
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally or otherwise (including, without limitation, the fees and expenses of
counsel for the Administrative Agent and each Lender Party with respect
thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their respective Affiliates
and their respective officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Acquisition or any related transaction of Borrower or
any of its Subsidiaries or other Affiliates and any of the other transactions
contemplated by the Acquisition Documents, (ii) the offering of the Senior
Subordinated Notes or any related transaction of Borrower or any of its
Subsidiaries or other Affiliates and any of the other transactions contemplated
by the Senior Subordinated Note Documents, (iii) any acquisition or proposed
acquisition or similar business combination or proposed business combination by
the Borrower or any of its Subsidiaries or other Affiliates of all or any
portion of the shares of capital stock or substantially all of the property and
assets of any other Person, (iv) the Facilities, the actual or proposed use of
the proceeds of the Advances or the Letters of Credit by the Borrower or any of
its Subsidiaries or other Affiliates and any of the other transactions
contemplated by the Loan Documents, or (v) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, officers, employees,
stockholders or
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creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated,
except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
The Borrower also agrees not to assert any claim against the Administrative
Agent, any Lender Party or any of their respective Affiliates, or any of their
respective officers, directors, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Acquisition, the Senior Subordinated Notes
(including, without limitation, the offering thereof), the Facilities, the
actual or proposed use of the proceeds of the Advances or the Letters of Credit,
the Loan Documents, the Acquisition Documents, the Senior Subordinated Note
Documents or any of the transactions contemplated thereby, other than claims for
direct, as opposed to consequential, damages which shall have been determined in
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from such Person's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 8.07, the Borrower
shall, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds required by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Default and (b) the making of the request or the granting of
the consent specified by Section 6.01 to authorize the Administrative Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender Party and each of its respective Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and otherwise apply any and all deposits (general or special, time or
demand, provisional or final)
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at any time held and other indebtedness at any time owing by such Lender Party
or such Affiliate to or for the credit or the account of the Borrower or any of
its Subsidiaries against any and all of the Obligations of the Borrower now or
hereafter existing under this Agreement and the Note or Notes (if any) held by
such Lender Party, irrespective of whether such Lender Party shall have made any
demand under this Agreement or such Note or Notes and although such obligations
may be unmatured. Each Lender Party agrees promptly to notify the Borrower and
Administrative Agent after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender Party and its respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender Party
and its respective Affiliates may have at law, in equity or otherwise.
SECTION 8.06. Binding Effect This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have been notified by each Initial Lender
and the Initial Issuing Bank that each such Initial Lender and the Initial
Issuing Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign any of its rights hereunder or any interest herein without
the prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of one or more the Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) no
such assignments shall be permitted without the prior consent of the
Administrative Agent (which may be withheld for any reason) until the earlier of
(A) the Administrative Agent's having notified the Lender Parties that
syndication of the Commitments hereunder has been completed and (B) ninety (90)
days after the Closing Date, (v) no such assignment shall be permitted if,
immediately after giving effect thereto, the Borrower would be required to make
payments to or on behalf of the assignee Lender Party pursuant to Section
2.10(a) or (b) and the assignor Lender Party was not, at the time of such
assignment, entitled to receive any payment pursuant to Section 2.10(a) or (b),
(vi) no such assignment shall be permitted if, immediately after giving effect
thereto, either (1) the Assigned Dollar Value of the Alternative Currency
Revolving Credit Sub-Commitment, if any, of the assignor Lender shall be greater
than the Revolving Credit Commitment of such Lender or (2) the Assigned Dollar
Value of the Alternative Currency Revolving Credit Sub-Commitment, if any, of
the assignee Lender shall be greater than the Revolving Credit Commitment of
such Lender, and (vii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and
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Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of $3,000.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (y) the Lender or Issuing Bank assignor thereun-
der shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Administrative Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
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binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment and the appropriate processing and reconciliation fee, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit A hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. In the case of any
assignment by a Lender, within five (5) Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it under a Facility pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder under such Facility, a new
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit B or C
hereto, as the case may be .
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment and/or Alternative Currency Letter of Credit Commitment at any time;
provided, however, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,000.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes, if any, held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment, waiver or other modification of any provision of
this Agreement or any other Loan Document, or any consent to any departure by
any Loan Party therefrom, except to the extent that such amendment, waiver,
modification or consent would reduce the principal of, or interest on, the Notes
or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or
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other amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be as effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit or Alternative Currency Letter of Credit with respect to its
use of such Letter of Credit or Alternative Currency Letter of Credit, as the
case may be. Neither the Issuing Bank nor any of its officers, directors,
employees or agents shall be liable or responsible for: (a) the use that may be
made of any Letter of Credit or Alternative Currency Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit or an Alternative Currency Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of Credit or
Alternative Currency Letter of Credit, as the case may be; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit or Alternative Currency Letter of Credit, except that the Borrower
shall have a claim against the Issuing Bank, and the Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit or an Alternative Currency Letter
of Credit comply with the terms of the Letter of Credit or Alternative Currency
Letter of Credit, as the case may be, or (ii) the Issuing Bank's willful failure
to make lawful payment under a Letter of Credit or Alternative Currency Letter
of Credit after the presentation to it of a draft and certificates strictly
complying with the terms and conditions of the Letter of Credit or Alternative
Currency Letter of Credit, as the case may be. In furtherance and not in
limitation of the foregoing, the
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Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Confidentiality. Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to the Administrative Agent's or
such Lender Party's Affiliates and their officers, directors, employees, agents
and advisors and to actual or prospective Eligible Assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) as required by the National Association of
Insurance Commissioners and (d) as requested or required by any state, federal
or foreign authority or examiner regulating banks or banking or insurance
companies.
SECTION 8.11. JURISDICTION, ETC. (a) EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE
UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM
ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW YORK STATE
COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL
AFFECT ANY RIGHT THAT ANY LENDER PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY JURISDICTION.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
SECTION 8.12. GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE
OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 8.13. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LOAN
PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
COLUMBUS XXXXXXXX CORPORATION
By___________________________________
Title:_________________________________
FLEET NATIONAL BANK, AS
ADMINISTRATIVE AGENT
By:__________________________________
Title:_________________________________
FLEET NATIONAL BANK,
AS INITIAL ISSUING BANK
By:_________________________________
Title:________________________________
FLEET NATIONAL BANK,
AS SWING LINE BANK
By:_________________________________
Title:________________________________
INITIAL LENDERS
FLEET NATIONAL BANK
By:_________________________________
Title:________________________________
INITIAL LENDERS
FIRST UNION NATIONAL BANK
By:_________________________________
Title:________________________________
INITIAL LENDERS
MARINE MIDLAND BANK, AS A CO-AGENT
AND LENDER
By:_________________________________
Title:________________________________
107
INITIAL LENDERS
BANKERS TRUST COMPANY
By:_________________________________
Title:________________________________
108
INITIAL LENDERS
MANUFACTURERS AND TRADERS
TRUST COMPANY, AS A CO-AGENT AND LENDER
By:_________________________________
Title:________________________________
109
INITIAL LENDERS
MELLON BANK, N.A.
By:_________________________________
Title:________________________________
110
INITIAL LENDERS
THE BANK OF NOVA SCOTIA, AS A
CO-AGENT AND LENDER
By:_________________________________
Title:________________________________
111
INITIAL LENDERS
KEYBANK NATIONAL ASSOCIATION
By:_________________________________
Title:________________________________
112
INITIAL LENDERS
ABN-AMRO BANK N.V. NEW YORK
BRANCH, AS A CO-AGENT AND LENDER
By:_________________________________
Title:________________________________
By:__________________________________
Title:_________________________________
113
INITIAL LENDERS
TORONTO DOMINION (TEXAS), INC.
By:_________________________________
Title:________________________________
114
INITIAL LENDERS
NATIONAL CITY BANK OF
PENNSYLVANIA
By:_________________________________
Title:________________________________
115
INITIAL LENDERS
COMERICA BANK
By:_________________________________
Title:________________________________
116
INITIAL LENDERS
BANK OF NEW YORK
By:_________________________________
Title:________________________________
000
XXXXXXX XXXXXXX
XXXXXXXX XXXX XX XXXXXX
By:_________________________________
Title:________________________________
By:_________________________________
Title:________________________________
118
