CONFORMED COPY
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 15, 1995
among
THE GENLYTE GROUP INCORPORATED
and
THE BANKS NAMED HEREIN
and
BANK OF AMERICA ILLINOIS,
as a Bank and Letter of Credit Issuer,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
As Agent
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TABLE OF CONTENTS
SECTION PAGE
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1. COMMITMENT. ...................................................... 1
(A) Amount.......................................... 1
(B) Reborrowings.................................... 2
(C) Banks' Obligations Several and Not Joint........ 2
(D) Reduction or Termination of Commitments......... 2
2. TERMS OF CREDIT. ................................................. 4
(A) The Notes....................................... 4
(B) Interest Rate................................... 4
(C) Prepayment...................................... 7
(D) Fees............................................ 8
(E) Letters of Credit............................... 10
(1) Requests............................... 10
(2) Other Banks' Participation............. 10
(3) Disbursements.......................... 11
(4) Reimbursement.......................... 11
(5) Deemed Disbursements................... 11
(6) Nature of Reimbursement Obligations.... 12
(F) Pro Rata Treatment.............................. 13
(G) Reserve Requirements; Change in Circumstances... 13
(H) Change in Legality.............................. 15
(I) Reimbursement of Banks.......................... 16
(J) Indemnity....................................... 16
(K) Payments........................................ 17
(L) Use of Proceeds................................. 17
(M) Taxes........................................... 17
(N) Security........................................ 17
3. REPRESENTATIONS AND WARRANTIES. .................................. 19
(A) Organization and Good Standing.................. 19
(B) Corporate Authority............................. 19
(C) Binding Agreement............................... 19
(D) No Conflicting Agreements....................... 19
(E) Litigation...................................... 19
(F) Tax Returns and Payments........................ 20
(G) Financial Statements............................ 20
(H) Compliance with Government Regulations.......... 21
(I) Employee Benefit Plans.......................... 21
(J) Ownership of Property; Liens.................... 21
4. CONDITIONS PRECEDENT. ............................................ 22
(A) Effectiveness................................... 22
(1) Execution in Counterparts.............. 22
(2) Resolutions etc........................ 22
(3) Compliance Certificate................. 22
(4) Opinions of Counsel.................... 23
(5) Notes.................................. 23
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SECTION PAGE
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(6) Pledge Agreement....................... 23
(7) Security Agreement..................... 23
(8) Letter of Credit Agreement............. 24
(9) Payment of Fees........................ 24
(10) Payment under Existing Credit Agreement 24
(B) All Credit Extensions........................... 24
(1) Notice................................. 25
(2) Compliance Certificate................. 25
(C) Legal Matters Satisfactory to Counsel........... 25
5. AFFIRMATIVE COVENANTS. ........................................... 26
(A) Payment of Principal and Interest on the
Notes, Letter of Credit Outstandings and
Fees Hereunder......................... 26
(B) Maintenance of Office........................... 26
(C) Books and Accounts.............................. 26
(D) Financial Statements............................ 26
(E) Taxes........................................... 27
(F) Insurance....................................... 28
(G) Corporate Existence............................. 28
(H) Notice of Default............................... 28
(I) Notice of Material Adverse Change............... 28
(J) ERISA Reports................................... 28
(K) Regulation U.................................... 29
(L) Future Subsidiaries............................. 29
6. NEGATIVE COVENANTS. .............................................. 30
(A) Borrowings...................................... 30
(B) Mortgages, etc.................................. 32
(C) Consolidation, Merger or Sale of Assets......... 33
(D) Loans, Advances and Contingent Liabilities...... 34
(E) Investments..................................... 35
(F) Payments on Stock; Restricted Investment........ 37
(G) Sale and Leaseback.............................. 38
(H) Obligations as Lessee........................... 38
(I) Negative Pledges, Restrictive Agreements, etc... 38
(J) Financial Covenants............................. 39
7. EVENTS OF DEFAULT. ............................................... 40
(A) Nature of Events................................ 40
(1) Default in Payment of Obligations...... 40
(2) Incorrect Representation............... 40
(3) Default Under Certain Covenants........ 40
(4) Default Under Other Provisions......... 40
(5) Cross Default.......................... 40
(6) Bankruptcy, etc........................ 40
(7) Unpaid Judgment........................ 41
(8) Material Reportable Events............. 41
(9) Control of the Borrower................ 42
(10) Impairment of Security, etc............ 42
(B) Banks' Rights of Set-off........................ 42
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SECTION PAGE
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8. THE AGENT AND COLLATERAL AGENT. .................................. 44
(A) Authorization by Banks.......................... 44
(B) Duties of Agent and Collateral Agent............ 44
(C) Limitation of Liability......................... 45
(D) Expenses........................................ 46
(E) Resignation of Agent............................ 46
(F) Acceptance of Appointment....................... 46
9. DEFINITIONS. .................................................... 48
10. AMENDMENTS AND WAIVERS. .......................................... 61
11. MISCELLANEOUS. ................................................ 62
(A) Costs and Expenses.............................. 62
(B) Indemnity....................................... 62
(C) Notices......................................... 63
(D) Survival of Representations and Warranties...... 63
(E) Construction.................................... 63
(F) Jurisdiction.................................... 63
(G) Headings........................................ 63-A
(H) Successors and Assigns.......................... 63-A
(I) Counterparts.................................... 63-A
(J) Waiver of Jury Trial............................ 63-A
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EXHIBITS
--------
Exhibit A List of Banks
Exhibit B Form of Note
Exhibit C Form of Leverage Ratio Certificate
Exhibit D Form of Compliance Certificate
Exhibit E Debt as of November 15, 1995
Exhibit F Form of Subordination Provisions
Exhibit G Addresses of the Agent and the Banks
Exhibit H Pledge Agreement
Exhibit I Security Agreement
Exhibit J Amended and Restated Letter of Credit Agreement
Schedule 1 Existing BAI Letters of Credit
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 15, 1995
among THE GENLYTE GROUP INCORPORATED, a Delaware corporation (the "Borrower"),
each of the banks named in Exhibit A (individually, a "Bank" and collectively,
the "Banks"), BANK OF AMERICA ILLINOIS (formerly known as "Continental Bank,
N.A."), as a Bank and as Issuer (the "Issuer"), and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks (the "Agent") (this
"Agreement").
R E C I T A L S:
WHEREAS, the Borrower, the Existing Banks and Bank of America Illinois
entered into a Revolving Credit and Term Loan Agreement dated July 20, 1988, as
amended and restated pursuant to a First Amendment dated as of July 17, 1991 and
as further amended by a First Amendment dated May 20, 1994, and a Second
Amendment dated as of August 11, 1995 (the "Existing Credit Agreement"); and
WHEREAS, the Borrower, the Banks, the Issuer and the Agent desire to
amend and restate the provisions of the Existing Credit Agreement as herein
provided for the purposes of (i) modifying certain provisions; (ii) making
additional financial institutions parties to the Existing Credit Agreement as
Banks; (iii) releasing certain Existing Banks party to the Existing Credit
Agreement and (iv) incorporating herein existing BAI Letters of Credit which
shall be deemed Letters of Credit Outstandings under this Credit Agreement as of
the Effective Date and which are described on Schedule 1 hereto, all with effect
as of and from the Effective Date;
NOW THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree that , as of the Effective Date, the Existing Credit
Agreement is hereby amended and restated as follows:
1. COMMITMENT.
(A) Amount. Subject to the terms and conditions hereof,
(1) each Bank agrees to make Loans (individually a "Loan" and
collectively the "Loans") to the Borrower, at any time and from time to
time on or after the date hereof and prior to the Final Maturity Date
or until such earlier time as such Bank's Commitment set forth on
Exhibit A, as such Commitment may be permanently reduced or terminated
pursuant
to subparagraph 1(D) hereof, shall have terminated in accordance with
the terms hereof, provided that at no time shall the aggregate
outstanding principal amount of any Bank's Loans, together with an
amount equal to such Bank's Percentage multiplied by the then aggregate
amount of Letter of Credit Outstandings, exceed the Commitment of such
Bank; and
(2) the Issuer agrees to issue, for the account of the
Borrower and in Stated Amounts requested by the Borrower, one or more
Letters of Credit, at any time and from time to time on or after the
date hereof and prior to the Final Maturity Date or such earlier time
as the Commitment shall have been permanently reduced to zero or
terminated; provided that at no time shall the aggregate amount of
Letter of Credit Outstandings exceed $25,000,000.
(B) Reborrowings. Subject to the terms and conditions hereof, the
Borrower may borrow, prepay, repay and reborrow Loans from each Bank at any time
and from time to time on or after the date hereof and prior to the Final
Maturity Date, provided that the aggregate outstanding principal amount of such
Bank's Loans, together with an amount equal to such Bank's Percentage multiplied
by the then aggregate amount of Letter of Credit Outstandings, does not exceed
the amount of such Bank's Commitment, and provided, further, that any such
prepayment or repayment shall be pro-rata among all the Banks.
(C) Banks' Obligations Several and Not Joint.
(1) The respective obligations of the Banks hereunder are
several and not joint. The failure of any Bank to make any Credit
Extension hereunder shall not relieve any other Bank from its
obligation to make a Credit Extension hereunder and no Bank shall be
obligated to make up the amount of any Credit Extension that a Bank has
failed to make available hereunder.
(2) Promptly on the date specified in the notice of a Loan
required under subdivision 4(B)(1), each Bank shall make available to
the Agent Federal or other immediately available funds in the amount of
such Bank's Loan.
(D) Reduction or Termination of Commitments.
(1) The Borrower may at any time permanently reduce in part in
the aggregate principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof, or terminate in whole the Commitment of
each Bank (on a pro-rata basis) and the Borrower's obligation to pay a
commitment fee in respect thereof upon three (3) Business Days' prior
written notice of such reduction or termination to the Agent, without
penalty, provided that (a) on or before the effective date of any such
partial reduction, the portion of the outstanding principal amount of
the Loans of each Bank which, together
2
with an amount equal to such Bank's Percentage multiplied by the then
aggregate amount of Letter of Credit Outstandings, exceeds the
Commitment of such Bank, as so reduced, shall be paid as a mandatory
prepayment and (b) on or before the effective date of any such
termination in whole, the entire outstanding principal amount of the
Loans of each Bank shall be paid as a mandatory prepayment and all the
Letters of Credit shall have been terminated in full or the Borrower
shall have paid or cash collateralized in full the related
Reimbursement Obligations. Voluntary partial reductions of the
Commitment, made pursuant to this subdivision 1(D)(1), shall be
credited to the mandatory quarterly reductions required pursuant to
subdivision 1(D)(2) below, in the order of the next occurring quarterly
reductions.
(2) Subject to any credits for any voluntary partial
reductions of the Commitment set forth in subdivision 1(D)(1) above,
the aggregate Commitment of all the Banks shall, automatically and
without any further action or notice to any Person, be reduced by
$2,500,000 on each March 31, June 30, September 30 and December 31
until the Final Maturity Date.
(3) The aggregate Commitment of all the Banks shall be reduced
by the amount of any prepayment resulting from a Sale and Leaseback
permitted in subparagraph 6(G). Mandatory Commitment reductions
required by subdivisions 1(D)(2) and (3) shall be subject to the
prepayment provisions set forth in subdivision 1(D)(1) above except
that the principal amount limitations for reductions in Commitments set
forth in 1(D)(1) above shall not apply.
(4) Notwithstanding subparagraph 1(B) and subdivision 1(D)(1),
in the event that any Bank shall give any notification to the Borrower
pursuant to subdivision 2(G)(5), the Borrower shall have the right to
terminate immediately the unused portion of the Commitment of such Bank
by giving notice of such termination to such Bank and to the Agent, in
which event such Bank shall have no further Commitment under this
Agreement except in the amount of Loans made by such Bank at the time
outstanding and its Percentage of the then outstanding amount of Letter
of Credit Outstandings, and when all such Loans made by such Bank have
been paid or prepaid and all Letters of Credit in which it has
purchased a participation have been terminated in full or the Borrower
has paid or cash collateralized in full the related Reimbursement
Obligations, such Bank shall have no further Commitment under this
Agreement. In the event that the Borrower terminates the Commitment of
any Bank pursuant to the provisions of this subdivision (D)(4), the
respective Commitments of the other Banks shall be unaffected in any
manner whatsoever, provided that each remaining Bank's Percentage
shall, automatically and without any further action, be adjusted
accordingly.
3
2. TERMS OF CREDIT.
(A) The Notes.
(1) The obligation of the Borrower to repay the Loans shall be
evidenced by Notes of the Borrower, payable to the order of each Bank,
in substantially the form of Exhibit B, with blanks appropriately
filled, signed and dated the Effective Date of the Initial Loans. The
Loans and Notes shall be payable on the Final Maturity Date. The Loans
made to the Borrower by any Bank and all payments and prepayments on
account of the principal of such Loans shall be recorded and endorsed
by such Bank on the Schedule of Loans and Payments of Principal on the
reverse side of the Note issued to it, which recordation and
endorsement shall be prima facie evidence of Loans by and payment to
such Bank; provided that the failure of such Bank to set forth such
principal payments, prepayments and other information on such Schedule
shall not in any manner affect the obligation of the Borrower to repay
the Loans made by such Bank in accordance with the terms of such Note.
Each Bank agrees to deliver to the Borrower from time to time a true
copy of the Note (including such Schedule) issued to such Bank upon the
written request of the Borrower.
(2) The Notes shall bear interest from the date thereof until
maturity or earlier payment by the Borrower pursuant to subparagraphs
1(D) or 2(C) or paragraph 7, at the rate calculated as set forth in
subparagraph 2(B) below, except as otherwise provided in this
subdivision 2(A)(2). Except as otherwise provided in this Agreement,
such interest shall be payable on each Interest Payment Date and at the
Final Maturity Date on the unpaid principal amount of Notes from time
to time outstanding. After the stated maturity or such earlier date on
which the principal of any Note may become or may be declared due and
payable pursuant to paragraph 7, such Note shall bear interest (and
after the date of any required prepayment pursuant to subdivision
2(C)(1), the principal amount of such Note required to be prepaid shall
bear interest) at the rate per annum of 2% over the Base Rate, payable
on each Interest Payment Date or, at the option of the holder thereof,
upon demand.
(B) Interest Rate.
(1) The Notes shall bear interest at a rate which, at the
election of the Borrower, shall be either the Base Rate or the
Eurodollar Rate. The Borrower shall elect the applicable rate of
interest as follows:
(a) Not later than 12:00 noon, New York time, on the
Business Day on which Loans at the Base Rate are to be made,
the Borrower shall give the Agent telephonic notice specifying
the aggregate principal amount of such Loans, and the date
such Loans are to be made. At least
4
three (3) Business Days prior to the making of each Loan at
the Eurodollar Rate, the Borrower shall give the Agent either
(1) written notice, or (2) telephone notice before 12:00 noon,
New York time, on the third Business Day prior to the date
specified for the making of such Loan, in either case,
specifying the aggregate principal amount of such Loan, the
date on which such Loan is to be made and the applicable
Interest Period, provided, that any such notice shall be
irrevocable when given. The telephonic notices provided for
herein shall be confirmed by the Agent to the Borrower in a
writing which shall be sent or mailed by the Agent prior to
the end of the second Business Day following the Business Day
on which such telephonic notice was given. As to any Bank, if
the Borrower fails in a timely fashion as set forth above to
make such election or to specify the applicable Interest
Period, the Base Rate shall apply to such Bank's Loan or
applicable portion thereof.
(b) The Base Rate or the Eurodollar Rate shall
(subject to the provisions of this subdivision 2(B)(1)(b) and
subdivision 2(B)(4) and subparagraph 2(G)) apply to that
portion of each Loan specified in the notice. The Borrower may
from time to time by notice to the Agent change its election
as between the Base Rate and the Eurodollar Rate, including
the Interest Period to be applied to any portion of the
outstanding amount of any Loan calculated at the Eurodollar
Rate, provided that (i) notice of any such change in election
to the Eurodollar Rate or an applicable Interest Period for
the Eurodollar Rate shall be irrevocable when given and shall
be given telephonically or in writing to the Agent before
12:00 noon, New York time, on the third Business Day prior to
the date desired for such change, and shall become effective
on the date (which shall be at least two (2) Business Days
subsequent to the date of such notice) specified therein; (ii)
any election to change from the Eurodollar Rate to the Base
Rate, or to change the applicable Interest Period, with
respect to the next applicable Interest Period, shall not
become effective prior to the end of the then current
applicable Interest Period; (iii) at any given time, the
maximum number of Loans at the Eurodollar Rate made by any
Bank shall not exceed ten; and (iv) the minimum aggregate
principal amount of Loans at the Eurodollar Rate made by all
Banks for any one Interest Period shall be not less than
$10,000,000. The telephonic notices provided for herein shall
be confirmed by the Agent to the Borrower in writing which
shall be sent or mailed to the Borrower prior to the end of
the second Business Day following the Business Day on which
such telephonic notice was given. As to any Bank, if the
Borrower fails in a timely fashion as set forth above to make
such election or to specify
5
the applicable Interest Period, the Base Rate shall apply to
such Bank's Loan or applicable portion thereof.
(2) With respect to the Base Rate, interest shall be computed
on the actual number of days elapsed over a year comprised of 365/366
days. Each change in the interest rate as a consequence of a change in
the Base Rate shall take effect as of the opening of business on the
date announced for the effectiveness of such change. Interest at the
Eurodollar Rate shall be computed on the basis of the actual number of
days elapsed over a year comprised of 360 days. The Eurodollar Rate
shall be determined by the Agent which determination shall be
conclusive absent manifest error.
(3) Notwithstanding anything herein or in the Notes to the
contrary, if the Agent in its sole discretion determines that on any
date on which a Eurodollar Rate is to be determined for the next
Interest Period elected by the Borrower, U.S. dollar deposits are not
generally available in the London interbank market for such Interest
Period in the amount of the Loan or portion thereof for which the
Eurodollar Rate has been elected to be outstanding during such Interest
Period, or that reasonable means do not exist for ascertaining the
Eurodollar Rate, the Agent shall promptly so notify the Borrower, and
(unless the Borrower elects a different Interest Period pursuant to
subdivision 2(B)(1)) the Base Rate shall automatically be applicable to
such Loan or portion thereof. After such notice shall have been given
and until the circumstances giving rise to such notice no longer exist,
each election for the Eurodollar Rate shall be deemed to be an election
for the Base Rate. Each determination by the Agent hereunder shall be
conclusive absent manifest error.
(4) For purposes of this Agreement, the Applicable
Margin shall be in effect as set forth below:
(a) for the period commencing on the Effective Date
and ending on the day immediately preceding the Initial
Adjustment Date:
Applicable Margin
-----------------
Base Rate . 0%
Eurodollar Rate 1.50%
(b) from and after the Initial Adjustment Date, for
each three-month period commencing on an Adjustment Date and
ending on the day immediately preceding the next succeeding
Adjustment Date, the rate per annum for the relevant type of
Loan set forth below opposite the Consolidated Leverage Ratio
determined as at the end of the last fiscal quarter ended
prior to the first day of such period:
6
Applicable Margin
Eurodollar Rate Base Rate
--------------- ---------
Consolidated Leverage Ratio
is less than or equal to
.45 to 1.0 ("Level I") 1.00% 0%
Consolidated Leverage Ratio
is less than or equal to
.50 to 1.0 but greater than
.45 to 1.0 ("Level II") 1.25% .25%
Consolidated Leverage Ratio
is less than or equal to
.60 to 1.0 but greater than
.50 to 1.0 ("Level III") 1.50% .50%
Consolidated Leverage Ratio
is greater than .60 to 1.0
("Level IV") 1.75% .75%
(c) If by any Adjustment Date, the Borrower has
failed to deliver a Leverage Ratio Certificate as at the end
of the fiscal quarter ended immediately prior to such
Adjustment Date interest for the next succeeding three-month
period shall be computed as if the Consolidated Leverage Ratio
were at Level IV.
(d) For any period for which the Applicable Margin is
calculated based on a Leverage Ratio Certificate which has been
prepared using unaudited fiscal year-end financial statements of the
Borrower, Borrower shall submit a revised Leverage Ratio Certificate,
as soon as available, prepared using the audited financial statements
for such period. In the event the Applicable Margin changes as a result
of the revised Leverage Ratio Certificate, an adjustment shall be made
at the next Interest Payment Date, which shall be either (i) a credit
in the amount of interest which has been overpaid or (ii) payment of
additional interest in the amount of any deficiency, such credit or
deficiency to be determined by the Agent.
(C) Prepayment.
(1) Upon termination or permanent reduction of the Commitment,
the Borrower shall make mandatory prepayments required by subparagraphs
1(D) or 6(G), together with all accrued but unpaid interest to the date
of prepayment on the principal amount of the Loans so prepaid. Subject
to subparagraph 2(I), any such prepayment shall be without premium or
penalty.
(2) The Borrower shall have the right, at any time or from
time to time, to prepay the outstanding principal amounts
7
of the Notes in whole or in part, in the aggregate principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof, upon
not less than three (3) Business Days' written or telecopier notice to
the Agent, provided that to the extent that the Borrower has elected to
use the Eurodollar Rate for any Loan, a prepayment may be made only on
the last day of the Interest Period applicable thereto. At the time of
each such payment the Borrower shall pay all accrued but unpaid
interest to the date of prepayment on the principal amount so prepaid.
Subject to subparagraph 2(I), any such prepayment shall be without
premium or penalty.
(D) Fees.
(1) The Borrower shall pay all fees, required to be paid, in
the amounts and at the times set forth in (i) with respect to the
Agent, BAI and BA Securities, the Commitment and Fee Letters and, (ii)
with respect to each Bank in accordance with and set forth in the
Information Package dated October 16, 1995 addressed to each Bank as
part of the confidential information package.
(2) The Borrower shall pay to the Agent for the account of
each Bank a commitment fee on the average daily unused portion of the
Commitment, being the amount by which the Commitment of the Banks
exceeds the sum of (x) the aggregate principal amount of all
outstanding Loans and (y) the aggregate amount of all Letter of Credit
Outstandings. Such fee shall be computed on a quarterly basis in
arrears on the last Business Day of each calendar quarter based upon
the daily utilization for that quarter as calculated by the Agent,
equal to (A) for the period from the Effective Date and ending on the
day immediately preceding the Initial Adjustment Date, 0.375% per annum
and (B) from and after the Initial Adjustment Date, for each
three-month period commencing on an Adjustment Date and ending on the
day immediately preceding the next succeeding Adjustment Date, the rate
per annum set forth below opposite the relevant level of Consolidated
Leverage Ratio determined as at the end of the last fiscal quarter
ended prior to the first day of such period:
Consolidated Leverage Ratio
---------------------------
Level I 0.25%
Level II 0.3125%
Level III 0.375%
Level IV 0.50%;
provided, however, that if by any Adjustment Date the Borrower has
failed to deliver a Leverage Ratio Certificate at the end of the fiscal
quarter ended immediately prior to such Adjustment Date, the commitment
fee for the next succeeding three-month period beginning on such
Adjustment Date and
8
ending on the next succeeding Adjustment Date shall be computed at the
rate of .50% per annum.
(3) The Borrower shall pay to the Agent for the account of
each Bank a letter of credit fee with respect to the Letters of Credit
computed on the average daily maximum amount available to be drawn of
outstanding Letters of Credit, on a quarterly basis in arrears on the
last Business Day of each calendar quarter based upon Letters of Credit
outstanding for that quarter. The rate applicable to the Letter of
Credit fee shall be equal to (i) for the period from the Effective Date
and ending on the day immediately preceding the Initial Adjustment
Date, with respect to each standby Letter of Credit 1.375% per annum
and with respect to each documentary Letter of Credit .375% per annum
and from and after the Initial Adjustment Date, for each three-month
period commencing on an Adjustment Date and ending on the day
immediately preceding the next succeeding Adjustment Date, the rate per
annum set forth below opposite the relevant level of Consolidated
Leverage Ratio determined as at the end of the last fiscal quarter
ended prior to the first day of such period:
Consolidated Leverage Ratio
---------------------------
Standby Documentary
Letters of Credit Letters of Credit
----------------- -----------------
Level I 0.875% .25%
Level II 1.125% .3125%
Level III 1.375% .375%
Level IV 1.625%; .50%
provided, however, that if by any Adjustment Date the Borrower has
failed to deliver a Leverage Ratio Certificate at the end of the fiscal
quarter ended immediately prior to such Adjustment Date, the letter of
credit fee for the next succeeding three-month period beginning on such
Adjustment Date and ending on the next succeeding Adjustment Date shall
be computed at the rate of 1.625% per annum for each standby Letter of
Credit and .50% per annum for each documentary Letter of Credit. Such
letter of credit fee shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter during which each Letter
of Credit is outstanding, commencing on the first such quarterly date
to occur after the Effective Date, through the Stated Expiry Date, with
the final payment to be made on the Stated Expiry Date.
(4) The Borrower shall pay to the Issuer a letter of credit
fronting fee for each standby Letter of Credit issued by the Issuer
equal to 1/8% of the face amount of such Letter of Credit. Such Letter
of Credit fronting fee shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter.
9
(5) The Borrower shall pay to the Issuer from time to time on
demand the normal issuance, presentment, amendment and other processing
fees, and other standard costs and charges, of the Issuer relating to
each Letter of Credit as from time to time in effect.
(E) Letters of Credit.
(1) Requests. By delivering to the Agent a written notice on
or before 11:00 a.m., New York time, on a Business Day on or prior to
the Final Maturity Date, specifying the Stated Amount of the Letter of
Credit, the date on which such Letter of Credit is to be issued, the
name and address of the beneficiary, the obligation such Letter of
Credit supports and the Stated Expiry Date of such Letter of Credit,
the Borrower may, from time to time, irrevocably request, on not less
than three (3) nor more than ten (10) Business Days' notice, in the
case of an initial issuance of a Letter of Credit, and not less than
ten (10) days' prior notice, in the case of a request for the extension
of the Stated Expiry Date of a Letter of Credit, that the Issuer issue,
or extend the Stated Expiry Date of, as the case may be, an irrevocable
letter of credit in such form as may be requested by the Borrower and
approved by the Issuer, solely for the purposes described in
subparagraph 2(L); provided, however, that with respect to any request
to extend the Stated Expiry Date of any outstanding Letter of Credit
the Borrower may make such request on any Business Day on or prior to
the Final Maturity Date on the terms set forth in this sentence. Upon
receipt of such written notice, the Agent shall promptly notify the
Issuer and each Bank thereof. Each Letter of Credit shall by its terms
be stated to expire on its Stated Expiry Date.
The Issuer will issue such Letter of Credit and make available to the
beneficiary thereof the original of each Letter of Credit which it issues
hereunder.
(2) Other Banks' Participation. Automatically, and without
further action, upon the issuance of each Letter of Credit, each Bank
(other than the Issuer) shall be deemed to have irrevocably purchased
from the Issuer, to the extent of such Bank's Percentage, a
participation interest in such Letter of Credit (including any
Reimbursement Obligation and any other contingent liability with
respect thereto), and such Bank shall, to the extent of its Percentage,
be responsible for reimbursing promptly (and in any event within one
(1) Business Day after receipt of demand for payment from the Issuer,
together with accrued interest from the day following such demand at
the Federal Funds Rate) the Issuer for any Reimbursement Obligation
which has not been reimbursed by the Borrower in accordance with
subdivision 2(E)(3). In addition, such Bank shall, to the extent of its
Percentage, be entitled to receive a ratable portion of the Letter of
Credit participation fee payable pursuant to subparagraph 2(D) with
10
respect to each Letter of Credit and a ratable portion of the interest
payable pursuant to subparagraph 2(A).
(3) Disbursements. Subject to the terms and provisions of such
Letter of Credit and this Agreement, upon presentment of any Letter of
Credit to the Issuer for payment, such Issuer shall make such payment
to the beneficiary (or its designee) of such Letter of Credit on the
Disbursement Date. The Issuer of a Letter of Credit will notify the
Borrower and each of the Banks promptly of the presentment for payment
of any such Letter of Credit, together with notice of the Disbursement
Date therefor. Prior to 11:00 a.m., New York time, on the next Business
Day following the Disbursement Date, the Borrower shall reimburse the
Agent, for the account of the Issuer, for all amounts disbursed under
such Letter of Credit, together with all interest accrued thereon since
the Disbursement Date, at the then applicable rate of interest for Base
Rate Loans.
(4) Reimbursement. The Reimbursement Obligation and, upon the
failure of the Borrower to reimburse the Issuer, each Bank's obligation
under subdivision 2(E)(2) to reimburse the Issuer, shall each be
absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which
the Borrower or such Bank, as the case may be, may have or have had,
including any defense based upon the failure of any Disbursement to
conform to the terms of the applicable Letter of Credit (if, in the
Issuer's good faith opinion, such Disbursement is determined to be
appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided,
however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of the
Borrower or such Bank, as the case may be, to commence any proceeding
against the Issuer for any wrongful Disbursement made by the Issuer
under a Letter of Credit as a result of acts or omissions constituting
gross negligence or willful misconduct on the part of such Issuer.
(5) Deemed Disbursements. Upon the occurrence and during the
continuation of any event which, after the giving of notice or lapse of
time or both, would constitute an event of default under subdivision
7(A)(6) or, with notice from the Agent, upon the occurrence and during
the continuation of any event of default
(a) an amount equal to that portion of all Letter of
Credit Outstandings attributable to the then aggregate amount
which is undrawn and available under all issued and
outstanding Letters of Credit shall, without demand upon or
notice to the Borrower, be deemed to have been paid out or
disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so
paid out or disbursed); and
11
(b) the Borrower shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so
paid or disbursed by such Issuer. Any amounts so payable by
the Borrower pursuant to this subdivision 2(E)(5) shall be
deposited in cash in an account designated by the Agent and
held as collateral for application to the payment of any
Obligations. At such time when such event or such event of
default shall have been cured or waived (and provided no other
default has occurred and is continuing and the Loans have not
been accelerated pursuant to paragraph 7), the Agent shall
return to the Borrower all amounts then on deposit with the
Agent pursuant to this subdivision 2(E)(5), net of any amounts
applied to the payment of any Obligations.
(6) Nature of Reimbursement Obligations. The Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be
responsible for:
(a) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter of Credit or any
document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any instrument transferring or
assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid or
ineffective for any reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a
Letter of Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail,
telecopier, telex or otherwise; or
(e) any loss or delay in the transmission or
otherwise of any document or draft required in order to make a
Disbursement under a Letter of Credit. None of the foregoing
shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Bank hereunder.
In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or
omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful
12
misconduct) shall be binding upon the Borrower and each such
Bank, and shall not put such Issuer under any resulting
liability to the Borrower or any such Bank, as the case may
be.
(F) Pro Rata Treatment. Each Credit Extension hereunder, each reduction
of the Commitment (except as provided in subdivision 1(D)(3)), each election of
the Base Rate or the Eurodollar Rate (except as otherwise provided in
subparagraph 2(H)), each payment or prepayment of principal or interest (except
as provided in subparagraph 2(G) below) on the Notes, each payment obligation
with respect to the Letter of Credit Outstandings and each payment of the fees
set forth in subparagraph 2(D) shall be made or applied among the Banks pro rata
in accordance with their respective Percentage, provided that, if the proportion
of the aggregate principal amount of the outstanding Notes held by the Banks
shall vary from such original or revised Percentages, then each payment or
prepayment of principal or interest on the Notes and payments on the Letters of
Credit shall be made or applied among the Banks pro rata in accordance with the
outstanding principal amount of the Notes.
(G) Reserve Requirements; Change in Circumstances.
(1) It is understood that the cost to the Banks of making or
maintaining Eurodollar Loans may fluctuate as a result of the
applicability of, or changes in, reserve requirements imposed by the
Board of Governors of the Federal Reserve System of the United States,
including, but not limited to, reserve requirements under Regulation D
of such Board of Governors ("Regulation D") at the ratios provided for
in Regulation D from time to time. The Borrower agrees to pay to each
Bank from time to time, as provided in subdivision (G)(3) below, such
amounts as shall be necessary to compensate such Bank for the portion
of the cost of making or maintaining any Eurodollar Loans made by it
resulting from any such reserve requirements, it being understood that
the rates of interest applicable to Eurodollar Loans hereunder have
been determined on the hypothetical assumption that no such reserve
requirements exist or will exist and that such rates do not reflect
costs imposed on the Banks in connection with such reserve
requirements. It is agreed that for purposes of this subdivision (G)(1)
the Eurodollar Loans made hereunder shall be deemed to constitute
Eurocurrency liabilities as defined in Regulation D and to be subject
to the reserve requirements of Regulation D without benefit or credit
of proration, exemptions or offsets which might otherwise be available
to any Bank from time to time under Regulation D.
(2) In the event that after the date hereof any change in
conditions or in applicable law or regulations or in the interpretation
or administration thereof (including, without limitation, any request,
guideline or policy not having the
13
force of law) by any authority charged with the administration or
interpretation thereof shall occur which shall:
(a) subject any Bank to any tax with respect to any
Loan at the Eurodollar Rate (other than any tax on the overall
net income of such Bank imposed by the United States of
America or by the jurisdiction in which such Bank has its
principal office or any political subdivision or taxing
authority therein); or
(b) change the basis of taxation of any payment to
any Bank of principal of or interest on or other fees and
amounts payable on any Loan at the Eurodollar Rate; or
(c) impose, modify or deem applicable any reserve,
deposit or similar requirement against any assets held by,
deposits with or for the account of or loans or commitments by
an office of any Bank; or
(d) impose upon any Bank or the interbank eurodollar
market any other condition with respect to Loans at the
Eurodollar Rate or this Agreement; and the result of any of
the foregoing shall be to increase the actual cost to such
Bank of making or maintaining any Loan at the Eurodollar Rate
or to reduce the amount of any payment (whether of principal,
interest or otherwise) received or receivable by such Bank, or
to require such Bank to make any payment in connection with
any Loan at the Eurodollar Rate, in each case by or in an
amount which such Bank in its sole judgment shall deem
material, then and in each such case the Borrower shall pay to
such Bank, as provided in subdivision (G)(3) below, such
amounts as shall be necessary to compensate such Bank for such
cost, reduction or payment.
(3) Each Bank shall deliver to the Borrower from time to time
one or more certificates setting forth the amounts due to such Bank
under subdivisions 2 (G)(1) and 2(G)(2) and the changes as a result of
which such amounts are due. Each such certificate shall be conclusive
in the absence of manifest error. The Borrower shall pay to each Bank
the amounts shown as due on any such certificate within ten days after
its receipt of the same. No failure on the part of any Bank to demand
compensation under subdivision 2(G)(1) on any one occasion shall
constitute a waiver of its right to demand such compensation on any
other occasion; provided that any demand for compensation pursuant to
this subparagraph 2(G) relating to any Interest Period for a Loan at
the Eurodollar Rate shall be made not later than the expiration of one
year after the last day of such Interest Period. The protection of this
subparagraph 2(G) shall be available to each Bank regardless of any
possible contention of the invalidity or inapplicability of any law,
regulation or other condition
14
which shall give rise to any demand by such Bank for
compensation hereunder.
(4) Notwithstanding any other provision of this Agreement, the
Borrower shall not have any liability under this subparagraph 2(G) as a
result of any change in a Bank's lending office, or an assignment or
participation of a Bank's rights or obligations under this Agreement if
such change, assignment or participation would, but for the application
of this sentence, impose any liability on the Borrower under this
subparagraph 2(G) by reason of legal, regulatory or other requirements
in effect or pending at the time of such change, assignment or
participation.
(5) In the event that any Bank shall have determined that the
adoption of any law, rule or regulation regarding capital adequacy,
affecting the banking industry generally, or any change therein or in
the interpretation or application thereof or compliance by any Bank
with any request or directive affecting the banking industry generally
regarding capital adequacy (whether or not having the force of law)
from any central bank or governmental authority, does or shall have the
effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder (including the Commitment of,
and Credit Extensions made by, such Bank) to a level below that which
such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect
to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, after submission by such Bank to the Borrower
(with a copy to the Agent) of a written notice of such reduction and as
soon as practicable thereafter, supporting documentation with respect
thereto, the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction, provided that
the Borrower shall not be required to make any such payments with
respect to any periods prior to receipt of written notice of such
reduction and provided further that no such payment shall be due until
the Borrower has received supporting documentation with respect thereto
which supporting documentation shall be deemed to be conclusive absent
manifest error. Notwithstanding the foregoing, to the extent that the
adoption of any such industry-wide law, rule, regulation, request or
directive regarding capital adequacy is reflected in the rate of
interest paid by the Borrower on any Loan, the Borrower shall not be
obligated to make any such compensatory payments to the Bank.
(H) Change in Legality. Notwithstanding any other provision herein, in
the event that any change after the date hereof in applicable law or regulation
or the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof, shall at any time make it unlawful for
any Bank to make or maintain a Loan as to which the Borrower has
15
elected the Eurodollar Rate, then upon the happening of such event, such Bank
may, by written notice to the Borrower,
(1) declare that Loans bearing the Eurodollar Rate shall not
thereafter be made by such Bank hereunder, whereupon the Borrower shall
be prohibited from requesting the Eurodollar Rate from such Bank
hereunder, unless such declaration is subsequently withdrawn, and
(2) require that, at the end of the then current Interest
Period (or earlier if required by law), the outstanding balance of such
Loan be converted to a Loan which shall bear interest at the Base Rate.
(I) Reimbursement of Banks. The Borrower shall reimburse each Bank on
demand for any loss incurred or to be incurred by it in the reemployment of the
funds released by any prepayment, acceleration or conversion of any Loan for
which the Eurodollar Rate has been elected under any other provision of this
Agreement or otherwise if such Loan is prepaid or converted other than on the
last day of an Interest Period for such Loan. Such loss shall be the difference
as reasonably determined (which determination shall be conclusive and binding on
the Borrower absent manifest error) by such Bank between its cost of obtaining
the funds for the Loan being prepaid or converted (based upon the Eurodollar
Rate applicable thereto) and any lesser amount that would be realized by such
Bank in reemploying the funds received in prepayment (or realized from the Loan
so converted) during the period from the date of prepayment, acceleration or
conversion to the end of the Interest Period of the Loan being prepaid or
converted at the Eurodollar Rate that would apply to an Interest Period of such
duration. These covenants shall survive the termination of this Agreement and
payment of the outstanding Notes.
(J) Indemnity. Without duplication of indemnity payments made pursuant
to other provisions of this Agreement, the Borrower will indemnify each Bank
against any actual loss or expense which such Bank may sustain or incur as a
consequence of any default in payment or prepayment of the principal amount of
any Loan or any part thereof or interest accrued thereon, as and when due and
payable (at the due date thereof, by notice of prepayment or otherwise), or the
occurrence of any Event of Default, including but not limited to any such loss
or expense sustained or incurred in liquidating or employing deposits from third
parties acquired to effect or maintain such Loan or any part thereof. Each Bank
shall provide to the Borrower a statement, signed by an officer of such Bank and
supported where applicable by documentary evidence, explaining the amount of any
such actual loss or expense, which statement shall, in the absence of manifest
error, be conclusive with respect to the parties hereto. These covenants shall
survive the termination of this Agreement and payment of the outstanding Notes.
16
(K) Payments. All payments by the Borrower hereunder and under the
Notes shall be made in U.S. dollars in immediately available funds at the office
of the Agent by 12:00 noon, New York time, on the date on which such payment
shall be due. Should the principal of, or any installment of the principal of,
or interest on, any of the Notes or any commitment fee payable hereunder become
due and payable on other than a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, in the case of principal or
installment of principal, interest shall be payable thereon at the rate herein
specified during any such extension; provided that with respect only to any such
payment of principal of or interest on any such Note evidencing a Loan for which
the Eurodollar Rate has been elected, if such next succeeding Business Day would
fall in the next calendar month, the due date of such payment shall be shortened
to the next preceding Business Day.
(L) Use of Proceeds. The Borrower will (1) use the net proceeds of the
Loans for working capital and general corporate purposes (excluding any
acquisition of an Acquired Company), and (2) use the Letters of Credit for
working capital and general corporate purposes (excluding any acquisition of an
Acquired Company).
(M) Taxes.
(1) Each Bank shall timely provide the Borrower with all
forms, certificates and other documents necessary for the Borrower to
conclude that payments relating to the loans and other amounts due
hereunder are not subject to, or are subject to a reduced rate of,
withholding under Sections 1441 and 1442 of the Code (or under any
successors to such sections).
(2) In the event the Borrower withholds taxes of any Bank
pursuant to Section 1441 or 1442 of the Code (or any successor
sections), the Agent shall make payments to such Bank net of such
withholding, in accordance with the instructions furnished to the Agent
by the Borrower.
(3) The Agent shall act as United States withholding agent for
all purposes of the Code and the regulations thereunder with respect to
all amounts payable under this Agreement.
(4) In the event any Bank makes an assignment of its interest
in the loans or commitments or changes its lending installation with
respect to the loans or commitments, such Bank shall promptly inform
the Borrower that such assignment or change has occurred and shall
promptly provide the Borrower with such details of the assignment or
change as the Borrower may reasonably request in order to comply with
its tax reporting requirements, if any.
(N) Security. All the Obligations, whether now or hereafter
existing, are secured by certain assets of the Borrower pursuant to
17
and in accordance with the terms of the Pledge Agreement and the
Security Agreement.
18
3. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks as follows:
(A) Organization and Good Standing. Each of the Borrower and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing, under the laws of the state of its incorporation, and has the
corporate power to own its properties and to carry on its business as now being
conducted. As of the Effective Date the Borrower has no Subsidiaries other than
those identified in Attachment 1 to the Pledge Agreement.
(B) Corporate Authority. The Borrower has full power and authority to
enter into this Agreement and the other Loan Documents, to request the Credit
Extensions hereunder, to execute and deliver the Notes and to incur the
obligations provided for herein, all of which have been duly authorized by all
proper and necessary corporate action. No consent or approval of shareholders is
required as a condition to the validity of this Agreement, the Notes or any of
the other Loan Documents.
(C) Binding Agreement. This Agreement constitutes, and the Notes and
each other Loan Document when executed and delivered pursuant hereto for value
received will constitute, the valid and legally binding obligations of the
Borrower enforceable in accordance with their respective terms except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
by the availability of equitable remedies or the application of equitable
principles.
(D) No Conflicting Agreements. The execution, delivery and performance
of this Agreement, the Notes and the other Loan Documents and the making of the
Credit Extensions hereunder will not violate, conflict with, constitute a
default under, or result in the creation of any lien or security interest on any
property or assets of the Borrower or any Restricted Subsidiary pursuant to the
provisions of any charter, by-law or preference stock provision of the Borrower
or any of its Restricted Subsidiaries or any provision of any existing mortgage,
indenture, contract or agreement binding on the Borrower or any of its
Restricted Subsidiaries, or affecting their respective properties other than any
such mortgage, indenture, contract or other agreement which is not material to
the Borrower and any of its Restricted Securities, taken as a whole.
(E) Litigation. There are no suits or administrative or other
proceedings or investigations pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or its Restricted Subsidiaries, if
any, (1) with respect to this Agreement, the Notes or the other Loan Documents
or the transactions contemplated hereby or thereby or (2) which could reasonably
be expected to have a material adverse effect on the financial condition of the
Borrower and its Restricted
19
Subsidiaries, if any, taken as a whole. Borrower has disclosed the existence of
the Xxxxx Corporation Litigation to Agent and the Banks as described in the
Opinion of Counsel required by (d) of subdivision 4(A)(2).
(F) Tax Returns and Payments. All tax returns and reports of the
Borrower and its Restricted Subsidiaries, if any, required by law to be filed
with the government of the United States and the government of any state or any
foreign jurisdiction, or with any taxing authority thereof or therein, in which
the Borrower or any of its Restricted Subsidiaries is or is required to be
licensed or qualified to do business have been duly filed; and all taxes,
assessments, fees and other governmental charges (other than those presently
payable without penalty and those currently being contested in good faith and
for which a reserve or other appropriate provision, if any, as shall be required
by generally accepted accounting principles shall have been made) shown on such
returns or levied or imposed upon or in respect of the interests, assets,
operations or income of the Borrower or any of its Restricted Subsidiaries have
been paid, other than the filing of such tax returns or reports the failure of
which to file, and the payment of such taxes, assessments, fees and other
governmental charges, the non-payment of which would not, either in any case or
in the aggregate, have a material adverse effect on the financial condition of
the Borrower and its Restricted Subsidiaries, if any, taken as a whole.
(G) Financial Statements. The Borrower has furnished the Banks with a
consolidated balance sheet of the Borrower as of December 31, 1994 and
statements of income, cash flow and changes in stockholders' equity for the
period then ended, accompanied by the report thereon of the Borrower's
independent public accountants. The Borrower has also furnished the Banks with a
balance sheet of the Borrower as of June 30, 1995 and statements of income, cash
flow and changes in stockholders equity for the period then ended (in each case
without notes but certified as true and correct by an officer of the Borrower).
Such financial statements, including the related schedules and notes thereto, if
any, have been prepared in accordance with generally accepted accounting
principles and present fairly the financial position of the Borrower and the
results of its operations as of the dates and for the periods stated therein
(subject to year-end footnotes and audit adjustments). Since December 31, 1994,
there has been no change in the financial condition or the operations of the
Borrower and its Restricted Subsidiaries, if any, other than changes which have
not been, either in any case or in the aggregate, materially adverse to the
financial condition of the Borrower and its Restricted Subsidiaries taken as a
whole. Neither the Borrower nor any of its consolidated subsidiaries had, at the
date of the most recent balance sheet referred to above, any material contingent
obligation, contingent liabilities or liability for taxes, long-term lease or
unusual forward or long-term commitments, which is material to the financial
condition of the Borrower and its
20
consolidated subsidiaries taken as a whole and is not reflected in
the foregoing statements or in the notes thereto.
(H) Compliance with Government Regulations. Except for actions taken or
filings made as described in Section 3.1.5 of the Security Agreement and Section
3.1.2 of the Pledge Agreement, no action of, or filing with, any governmental or
public body is required on the part of the Borrower as a condition to the valid
execution, delivery or performance of this Agreement, the Notes or the other
Loan Documents and the making of the Credit Extensions hereunder. The execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents do not violate any provision of any Federal, state or municipal law,
rule or regulation (including, without limitation, Regulation U or X of the
Board of Governors of the Federal Reserve System), or any judgment, order or
decree binding on the Borrower.
(I) Employee Benefit Plans. Based upon ERISA and the regulations and
published interpretations thereunder, the Borrower and its Subsidiaries, if any,
are, to the best of the Borrower's knowledge, in compliance or in the process of
complying in all material respects with the applicable provisions of ERISA,
subject to the provisions of Section 401(b) of the Internal Revenue Code. No
Reportable Event has occurred with respect to any Plan or any Multiemployer
Plan.
(J) Ownership of Property; Liens. Each of the Borrower and its
Restricted Subsidiaries has good record and marketable title in fee simple to or
valid leasehold interests in all its real property, and good title to all its
other property, in each case to the extent such property is material to the
business and financial condition of the Borrower and its subsidiaries taken as a
whole, and none of such property is subject to any material Lien, except as
permitted in subparagraph 6(B).
21
4. CONDITIONS PRECEDENT
(A) Effectiveness. Notwithstanding any other provisions of this
Agreement, this Agreement shall not become effective until the date on which
each of the following conditions set forth in this subparagraph 4(A) has been
satisfied.
(1) Execution in Counterparts. The Agent shall have received
counterparts of the Amended and Restated Loan Agreement duly executed
by the parties thereto.
(2) Resolutions etc. The Agent shall have received
(a) from the Borrower a certificate, dated the
Effective Date, of its Secretary as to:
(i) resolutions of its Board of
Directors, then in full force and effect, authorizing
the execution, delivery and performance of this
Amended and Restated Loan Agreement, the Security
Agreement, the Pledge Agreement and the Letter of
Credit Agreement, and
(ii) the incumbency and signatures
of those of its officers authorized to act with
respect to this Amended and Restated Loan Agreement,
the Security Agreement, the Pledge Agreement and the
Letter of Credit Agreement,
upon which certificate the Agent and each Bank may
conclusively rely until the Agent shall have received a
further certificate of the Secretary of the Borrower canceling
or amending such prior certificate; and
(b) such other documents (certified if requested) as
the Agent or the Required Banks may reasonably request with
respect to the transactions contemplated hereby.
(3) Compliance Certificate. The Agent shall have received for
each Bank a certificate executed by the President, any Vice President
or the Treasurer of the Borrower, dated the Effective Date, to the
effect that the Borrower is then in compliance with all the terms,
covenants and conditions of this Agreement which are binding upon it;
there shall exist no event of default as designated in paragraph 7 and
no event which, with the giving of notice or the lapse of time or both,
would constitute such an event of default; and the representations and
warranties contained in paragraph 3 hereof, Article III of the Security
Agreement, Article III of the Pledge Agreement and Section 9 of the
Letter of Credit Agreement shall be true with the same effect as though
such representations and warranties had been made on the Effective
Date.
22
(4) Opinions of Counsel. The Agent and each of the Banks shall
have received (a) a favorable written opinion of Xxxxxxxx Siegelbaum
(or other counsel satisfactory to the Agent), dated the Effective Date
and satisfactory in form and substance to the Agent and its counsel, as
to the matters referred to in subparagraphs 3(A) (as to the Borrower),
(B), (C) and (H) (as to matters of New York and Federal law only), the
creation and perfection of the security interests created pursuant to
the Pledge Agreement and the Security Agreement and the priority of the
security interests in the Pledged Shares created pursuant to and as
defined in the Pledge Agreement; (b) a favorable written opinion of
counsel satisfactory to the Agent, dated the Effective Date and
satisfactory in form and substance to the Agent and its counsel, as to
the matters referred to in subparagraph 3(A) (as to each Restricted
Subsidiary); (c) a favorable written opinion of Xxxxxxx Xxxxxxxxxxx,
Esq., General Counsel of the Borrower, dated the Effective Date and
satisfactory in form and substance to the Agent and its counsel, as to
the matters referred to in (i) subparagraph 3(D) (to the extent of his
knowledge after due investigation in the case of mortgages, indentures,
contracts and agreements referred to therein) and (ii) subparagraph
3(E) (other than the Xxxxx Corporation Litigation); and (d) a favorable
written opinion of XxXxxxxx & English, in the case of those matters
referred to in subparagraph 3(E) as it relates to the Xxxxx Corporation
Litigation.
(5) Notes. Each Bank shall have received an executed
Note relating to its Loans hereunder.
(6) Pledge Agreement. The Agent shall have received executed
counterparts of the Pledge Agreement, dated as of the date hereof, duly
executed and delivered by the Borrower, together with the certificates,
evidencing all of the issued and outstanding shares of capital stock
pledged pursuant to the Pledge Agreement, which certificates shall in
each case be accompanied by undated stock powers duly executed in
blank.
(7) Security Agreement. The Agent shall have received
executed counterparts of the Security Agreement, dated as of
the date hereof, duly executed by the Borrower, together with
(a) acknowledgment copies of properly filed Uniform
Commercial Code financing statements (Forms UCC-1, 2, or 3 as
appropriate), dated a date reasonably near to the Effective
Date, or such other evidence of filing as may be acceptable to
the Agent, naming the Borrower as the debtor and the
Collateral Agent as the secured party, or other similar
instruments or documents, filed under the Uniform Commercial
Code of all jurisdictions as may be necessary or, in the
opinion of the Agent, desirable to perfect or continue the
perfection of the security
23
interest of the Collateral Agent pursuant to the Security
Agreement;
(b) executed copies of proper Uniform Commercial Code
Form UCC-3 termination statements as may be necessary to
release all liens, security interests and other rights of any
Person in any collateral described in the Security Agreement
previously granted to any Person, together with such other
Uniform Commercial Code Form UCC-3 termination statements as
the Agent may reasonably request; and
(c) certified copies of Uniform Commercial Code
Requests for Information or Copies (Form UCC-11), or a similar
search report certified by a party acceptable to the Agent,
dated a date reasonably near to the Effective Date (or such
later date as to which the Agent may otherwise consent in
writing), listing all effective financing statements which
name the Borrower (under its present name and any previous
names) as the debtor and which are filed in the jurisdictions
in which filings were made pursuant to subdivision (a) above,
together with copies of such financing statements (none of
which (other than those described in subdivision (a), if such
Form UCC-11 or search report, as the case may be, is current
enough to list such financing statements described in
subdivision (a) and those for which UCC-3 termination
statements described in subdivision (b) have been obtained)
shall cover any collateral described in the Security
Agreement).
(8) Letter of Credit Agreement. The Borrower and BAI shall
have entered into the Letter of Credit Agreement and such agreement
shall be in form and substance satisfactory to BAI.
(9) Payment of Fees. The Borrower shall have paid, in
immediately available funds, all fees required to be paid hereunder and
under the Commitment and Fee Letters and the Information Package dated
October 16, 1995 addressed to each Bank as part of the confidential
information package, including Attorney's Costs.
(10) Payment under Existing Credit Agreement. All
obligations under the Existing Credit Agreement shall have
been paid in full.
(B) All Credit Extensions. Notwithstanding any other provisions of this
Agreement, the obligation of each Bank and each Issuer to make any Credit
Extensions (including the initial Credit Extension in the case of subdivision
(1) below) shall be subject to the following conditions:
24
(1) Notice. The Borrower shall give the applicable notice
described in subdivision 2(B)(1)(a) or 2(E)(1) hereof, as the case may
be, to the Agent and to the Banks as may be required by said
subdivisions. With respect to Loans as to which the Borrower has
elected the Base Rate, the Agent shall notify each Bank of the
principal amount of its Loan.
(2) Compliance Certificate. At the time of each Credit
Extension (other than in connection with a change of the rate of
interest of a Loan (including a change in the applicable rate of
interest as between the Base Rate and the Eurodollar Rate) without an
increase in the outstanding principal amount of the Loans hereunder)
the Borrower shall then be in compliance with all the terms, covenants
and conditions of this Agreement which are binding upon it; there shall
exist no event of default as designated in paragraph 7 and no event
which, with the giving of notice or the lapse of time or both, would
constitute such an event of default; the representations and warranties
contained in paragraph 3 hereof, Article III of the Security Agreement
and Article III of the Pledge Agreement shall be true with the same
effect as though such representations and warranties had been made at
the time of the making of such Credit Extension (except for such
changes thereto as are expressly contemplated by the terms of the
Security Agreement or the Pledge Agreement); and the Agent shall have
received (except in the case of the initial Credit Extension) a
certificate substantially in the form of Exhibit D, dated the date of
the making of such Credit Extension and signed by the President, a Vice
President or the Treasurer of the Borrower.
(C) Legal Matters Satisfactory to Counsel. All legal matters incident
to each Credit Extension (including the initial Credit Extension) and the
issuance of each Note and Letter of Credit shall be satisfactory to counsel for
the Agent.
25
5. AFFIRMATIVE COVENANTS.
So long as any Commitment shall remain available hereunder or any
monetary Obligations have not been paid in full:
(A) Payment of Principal and Interest on the Notes, Letter of Credit
Outstandings and Fees Hereunder. The Borrower will pay or cause to be paid the
principal of and interest on the Notes, Letter of Credit Outstandings and the
fees and all other amounts due under this Agreement, in each case as the same
becomes due and payable.
(B) Maintenance of Office. The Borrower will maintain an office or
agency in Secaucus, New Jersey (or such other place in the United States of
America as the Borrower may designate in writing to the Agent), where notices,
presentations and demands to or upon the Borrower may be given or made.
(C) Books and Accounts. The Borrower will keep, and cause each of its
Restricted Subsidiaries to keep, proper books of record and account in which
proper entries will be made of transactions in accordance with generally
accepted accounting principles; and will provide each Bank with access at
reasonable times to such books and accounts and to financial and other
information prepared by the Borrower in the ordinary course of its business. In
addition, the Borrower will permit each Bank to discuss the financial affairs of
the Borrower with the officers and independent public accountants of the
Borrower.
(D) Financial Statements. The Borrower will furnish to each of the
Banks (1) as soon as available but in no event later than 45 days after the end
of each of the first three quarters of each fiscal year of the Borrower,
consolidated balance sheets of the Borrower and its Restricted Subsidiaries as
of the close of such quarter, consolidated statements of income and a
consolidated statement of changes in stockholders' equity of the Borrower and
its Restricted Subsidiaries for such quarter (subject to year-end footnotes and
adjustments) and a consolidated statement of cash flows of the Borrower and its
Restricted Subsidiaries for such quarter, certified by the chief financial
officer, or Treasurer of the Borrower and accompanied by a certificate of such
officer stating whether any event has occurred which constitutes an event of
default as designated in paragraph 7 or any event has occurred which, with the
giving of notice or the lapse of time or both, would constitute such an event of
default and, if there has been any such event of default or other event, stating
the facts and the action which the Borrower has taken or plans to take with
respect thereto, and demonstrating in reasonable detail compliance at the end of
such quarter with the restrictions contained in subparagraphs 6(F) and 6(J) and
subdivisions 6(E)(9) and 6(E)(10); (2) as soon as available but in no event
later than 120 days after the close of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of
the close of such fiscal year, and consolidated statements of income, cash flow
and changes in stockholders' equity of the
26
Borrower and its Restricted Subsidiaries for such fiscal year, audited by Xxxxxx
Xxxxxxxx & Co. (or one of the following five firms of independent public
accountants which has offices throughout the United States: Ernst & Young,
Coopers & Xxxxxxx, Deloitte & Touche, KPMG Peat Marwick or Price Waterhouse &
Co.); (3) as soon as available but in no event later than 120 days after the
close of each fiscal year of the Borrower, a report of the accounting firm which
audited the financial statements of the Borrower for such fiscal year, stating
whether anything in such accounting firm's examination revealed the occurrence
of an event (insofar as such event pertains to accounting matters) which
constitutes an event of default under paragraph 7 or of an event which, with the
giving of notice or the lapse of time or both, would constitute such an event of
default or other event, and, if there has been any such event of default or
other event, stating the facts with respect thereto (it being understood that
such accounting firm shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any such event unless such accounting firm should
have obtained knowledge thereof in making an audit in accordance with generally
accepted auditing standards); (4) for purposes of calculating the Leverage Ratio
Certificate, as soon as available, but in any event within 45 days after the
close of any fiscal year of the Borrower, an unaudited consolidated balance
sheet of the Borrower and its Restricted Subsidiaries as of the close of such
fiscal year and unaudited consolidated statements of income, for such fiscal
year, certified by the chief financial officer, or Treasurer of the Borrower;
(5) together with the annual financial statements the Borrower furnishes
pursuant to subdivision 5(D)(2), a certificate containing the information
described in subdivision 5(D)(1) and also demonstrating in reasonable detail
compliance at the end of such fiscal year with the restrictions contained in
subparagraph 6(J); (6) all current, quarterly or annual reports filed by the
Borrower with the SEC and all quarterly and annual reports to the Borrower's
shareholders; and (7) such additional information, reports or statements as the
Agent or any Bank may from time to time reasonably request.
(E) Taxes. The Borrower will pay and discharge, and cause each of its
Restricted Subsidiaries, if any, to pay and discharge, all taxes, assessments
and governmental charges levied or imposed upon or in respect of the interests,
income and properties of the Borrower and each such Restricted Subsidiary prior
to the date on which penalties attach for the nonpayment thereof, except such
taxes, assessments and governmental charges as are being contested in good faith
and by appropriate proceedings by the Borrower or such Restricted Subsidiary and
for which such reserve or other appropriate provision, if any, as shall be
required by generally accepted accounting principles shall have been made and
except such taxes, assessments and governmental charges the nonpayment of which
would not, in any case or in the aggregate, have a material adverse effect on
the financial condition of the Borrower and its Restricted Subsidiaries, if any,
taken as a whole.
27
(F) Insurance. The Borrower will maintain, and cause each of its
Restricted Subsidiaries, if any, to maintain, insurance with responsible
insurance companies, in such amounts and against such risks as is customarily
maintained by similar businesses operating in the same vicinity, provided that
the Borrower and its Restricted Subsidiaries, if any, may self-insure against
such risks and in such amounts as they may reasonably deem appropriate in light
of the availability and cost of insurance for such risks, their experience and
such reserves, if any, as they may have established in respect thereof. The
Borrower will, if reasonably possible, give the Agent, for the benefit of the
Banks not less than 30 days' prior notice of any self-insurance not previously
notified to the Banks or the Agent pursuant to this subparagraph 5(F). Upon the
request of the Agent or any Bank, the Borrower will file with the Agent a
detailed list of the insurance as then in effect maintained by the Borrower and
its Restricted Subsidiaries, if any, stating the names of the insurance
companies, the amounts and rates of the insurance, dates of the expiration
thereof and the risks covered thereby and indicating any self-insurance by the
Borrower and its Restricted Subsidiaries, if any. Within 30 days after notice in
writing from the Agent, the Borrower shall obtain and cause its Restricted
Subsidiaries, if any, to obtain such additional insurance as the Agent may
reasonably request and which the Borrower or any such Restricted Subsidiary, as
the case may be, may reasonably obtain.
(G) Corporate Existence. Subject to the provisions of subparagraph
6(C), the Borrower will maintain, and cause each of its Restricted Subsidiaries,
if any, to maintain, its corporate existence in good standing in the
jurisdiction of its incorporation.
(H) Notice of Default. The Borrower will promptly notify the Agent and
each Bank in writing of the occurrence of any event of default as that term is
designated in paragraph 7 or event which, after the giving of notice or the
lapse of time or both, would constitute such an event of default, stating the
facts and the actions which the Borrower plans to take with respect thereto.
(I) Notice of Material Adverse Change. The Borrower will promptly give
notice to the Agent and each Bank in writing of a material adverse change in the
business, operations, property or financial or other condition of the Borrower
and its Subsidiaries taken as a whole.
(J) ERISA Reports. The Borrower will furnish to each of the Banks (1)
as soon as possible, and in any event within 30 days after the Plan
administrator of any Plan of the Borrower or any of its Subsidiaries knows or
has reason to know that any Reportable Event with respect to such Plan has
occurred, a statement of the chief financial officer, Controller or Treasurer of
the Borrower setting forth details as to such Reportable Event and the action,
if any, which is proposed to be taken with respect thereto, together with a copy
of any notice of such Reportable Event given
28
by the Borrower or any Subsidiary to the Pension Benefit Guaranty Corporation
and (2) within 30 days after receipt thereof, a copy of any notice the Borrower
or any of its Subsidiaries may receive from the Pension Benefit Guaranty
Corporation relating to the intention of such Corporation to terminate any Plan
or to appoint a trustee to administer any Plan. The Borrower will promptly file
with the United States Secretary of Labor or the Pension Benefit Guaranty
Corporation all annual and other reports required to be filed by it with respect
to each Plan.
(K) Regulation U. The Borrower will, at all times, comply with all
applicable provisions of Regulation U of the Board of Governors of the Federal
Reserve System.
(L) Future Subsidiaries. Upon any Person becoming, after the Effective
Date, a Subsidiary of the Borrower, or upon the Borrower acquiring additional
capital stock of any existing Subsidiary having voting rights or contingent
voting rights, the Borrower shall notify the Agent of such acquisition, and,
unless otherwise agreed to between the Borrower and the Required Banks, the
Borrower shall, pursuant to a pledge agreement substantially in the form of the
Pledge Agreement, pledge to the Collateral Agent, for its benefit and that of
the Banks and BAI (pursuant to the BAI Letters of Credit), all (or in the case
of a Subsidiary that is a "controlled foreign corporation" within the meaning of
Section 957 of the Internal Revenue Code of 1986, as amended, or any successor
provision, 65%) of the outstanding shares of such capital stock of such
Subsidiary owned or held by the Borrower, along with undated stock powers for
such certificates, executed in blank (or, if any such shares of capital stock
are uncertificated, confirmation and evidence satisfactory to the Collateral
Agent and the Agent that the security interest in such uncertificated securities
has been transferred to and perfected by the Collateral Agent, for its benefit
and that of the Banks and BAI (pursuant to the BAI Letters of Credit), in
accordance with Section 8-313 and Section 8-321 of the Uniform Commercial Code,
as in effect in the State of New York, or any similar law which may be
applicable), together with such opinions of legal counsel, in form and substance
reasonably satisfactory to the Agent and the Banks, as the Agent may reasonably
require.
29
6. NEGATIVE COVENANTS.
So long as any Commitment shall remain available hereunder or any
monetary Obligations have not been paid in full the Borrower agrees that,
without the prior written consent of the Banks as provided in paragraph 10:
(A) Borrowings. The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, create, incur or assume any liability in respect of
Funded Debt or Short-Term Borrowings except:
(1) with respect to the Borrower:
(a) the Notes and the Letters of Credit;
(b) the BAI Letters of Credit;
(c) Funded Debt created, incurred or assumed (by
Guarantee or otherwise) in connection with any IRB Financing
or secured by mortgages, liens or other security interest
permitted by subparagraph 6(B); and
(d) other Subordinated Funded Debt approved in
writing by the Required Banks.
(2) with respect to any Restricted Subsidiaries:
(a) Funded Debt
(i) secured by any mortgage, pledge, lien,
security interest or other encumbrance of any kind
(1) to secure or provide for the payment or financing
of any part of the purchase price of property
acquired after the date hereof (other than through
the acquisition of an Acquired Company) and granted
at the time of or within 90 days after the
acquisition of such property or existing on such
property at the time of acquisition thereof, whether
or not assumed, or (2) in property of any Acquired
Company existing at the time of the acquisition
thereof, provided that the aggregate principal amount
of all such secured Funded Debt secured by any such
property of an Acquired Company shall not exceed 15%
of Stockholders' Equity; or
(ii) created, incurred or assumed (by
Guarantee or otherwise) in connection with any IRB
Financing; provided that, immediately after giving
effect to the creation, incurrence or assumption
thereof, the aggregate principal amount of all such
Funded Debt shall not exceed 15% of Stockholders'
Equity. Notwithstanding the foregoing provisions of
subdivisions (i) and (ii), the sum of the
30
aggregate principal amount of all Funded Debt secured
by property of any Acquired Company existing at the
time of the acquisition thereof plus the aggregate
principal amount of all Funded Debt created, incurred
or assumed (by Guarantee or otherwise) in connection
with any IRB Financing immediately after giving
effect thereto shall not exceed 25% of Stockholders'
Equity.
(3) with respect to the Borrower and any Restricted
Subsidiary:
(a) unsecured Short-Term Borrowings of the Borrower
or its Restricted Subsidiaries incurred in the ordinary course
of business, provided that (i) immediately after giving effect
to the creation, incurrence or assumption thereof, the
aggregate principal amount of such unsecured Short-Term
Borrowings shall not exceed $10,000,000, and (ii) no such
Short-Term Borrowings shall be outstanding on any day unless
for a period of at least 30 consecutive days during the
12-month period immediately preceding such day either (1)
there shall have been outstanding no such Short-Term
Borrowings or (2) there shall have been available during such
30-day period an unused Commitment pursuant to this Agreement
in an amount which at least equals such Short-Term Borrowings;
For the purpose of calculating the maximum amount set forth in
(3)(a)(i) above, the Short-Term Borrowings set forth in
Exhibit E as items (i) and (ii) shall be excluded.
(b) Funded Debt and Short-Term Borrowings included
on Exhibit E, and any renewals, extensions, draw-downs or
refundings thereof; and
(c) Funded Debt or Short-Term Borrowings
constituting
(i) loans or advances by the Borrower to any
of its Restricted Subsidiaries or any Person which
simultaneously therewith becomes an Acquired Company;
(ii) loans or advances by any Restricted
Subsidiary to the Borrower or to another Restricted
Subsidiary of the Borrower; or
(iii) Investments by the Borrower in any
Restricted Subsidiary of the Borrower or any Person
which simultaneously therewith becomes an Acquired
Company or by any Restricted Subsidiary of the
Borrower in the Borrower or another Restricted
Subsidiary of the Borrower or in any Person which
31
simultaneously therewith becomes an Acquired
Company.
(d) Indebtedness arising under Interest Rate
Protection Agreements entered into with any Bank.
(B) Mortgages, etc. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
mortgage, pledge, lien, security interest or other encumbrance of any kind
(including the charges upon property purchased under conditional sales or other
title retention agreements) upon or in, any of its property or assets, whether
now owned or hereafter acquired, except:
(1) liens securing payment of the Credit Extensions and the
BAI Letters of Credit pursuant to the Pledge Agreement and the Security
Agreement;
(2) liens for taxes or other governmental charges the
payment of which is not at the time required by subparagraph
5(E);
(3) liens in connection with workers' compensation,
unemployment insurance or other social security obligations;
(4) deposits or pledges to secure bids, tenders, contracts
(other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds and other obligations of like
nature arising in the ordinary course of business
(5) mechanics', workers', materialmen's, landlords',
carriers', or other like liens arising in the ordinary course of
business with respect to obligations which are not due or which are
being contested in good faith by appropriate proceedings if such
reserve or other appropriate provision, if any, as shall be required by
generally accepted accounting principles shall have been made therefor;
(6) the mortgages, pledges and liens, security interests and
other encumbrances included on Exhibit E, including any renewal,
extension or refunding thereof, provided the Indebtedness relating to
such renewal, extension or refunding shall not exceed 80% of the fair
market value of the property covered thereby as determined by an
independent appraiser of recognized standing reasonably acceptable to
the Agent;
(7) any mortgage, pledge, lien, security interest or other
encumbrance of any kind (a) to secure or provide for the payment or
financing of any part of the purchase price of property acquired after
the date hereof by the Borrower or any of its Restricted Subsidiaries
(other than through the acquisition of an Acquired Company) and granted
at the time of or within 90 days after the acquisition of such property
or
32
existing on such property at the time of acquisition thereof, whether
or not assumed, or (b) secured by property of any Acquired Company
existing at the time of the acquisition of such Acquired Company, or
(c) created, incurred, assumed, established, renewed or suffered to
exist in connection with any IRB Financing permitted by subparagraph
6(A); provided that:
(a) the principal amount of any Indebtedness referred
to in subdivision 6(B)(7)(a) shall not exceed 80% of the
greater of (x) the cost of the newly acquired property or
improvements covered thereby to the Borrower or any of its
Restricted Subsidiaries acquiring the same or (y) the fair
market value of such property or improvements, as determined
by an independent appraiser of recognized standing reasonably
acceptable to the Agent; and
(b) each such mortgage, pledge, lien, security
interest or other encumbrance shall be confined only to the
property referred to in subdivision 6(B)(7)(a) or (b) or
financed by the IRB Financing referred to in subdivision
6(B)(7)(c), as the case may be, and, if required by the terms
of the instrument originally creating such mortgage, lien,
security interest or other encumbrance, other property which
is an improvement to, or which is acquired for specific use in
connection with, or which is real property being improved by,
such property;
(8) any mortgage, pledge, lien, security interest or other
encumbrance of any kind on, or in, any "margin stock", as at the time
defined in Regulation U of the Board of Governors of the Federal
Reserve System;
(9) any mortgage, pledge, lien, security interest or other
encumbrance of any kind in connection with import letters of credit
incurred by the Borrower in the ordinary course of its business; and
(10) other mortgages, pledges, liens, security interests or
other encumbrances of any kind upon or in any properties or assets of
the Borrower if, immediately after giving effect thereto, the aggregate
principal amount of all Indebtedness of the Borrower secured by all
such mortgages, pledges, liens or other encumbrances or security
interests does not exceed 5% of Stockholders' Equity.
(C) Consolidation, Merger or Sale of Assets. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) consolidate with or merge into any other Person,
provided that the foregoing shall not prevent (a)
33
consolidations or mergers of a Restricted Subsidiary of the Borrower
with or into the Borrower or with or into another Restricted Subsidiary
of the Borrower or with or into a Person which simultaneously therewith
becomes a Restricted Subsidiary of the Borrower, or (b) consolidations
or mergers in which the continuing or surviving corporation is the
Borrower or a Restricted Subsidiary of the Borrower, or a Person which
simultaneously therewith becomes a Restricted Subsidiary of the
Borrower, or (c) the consolidation of the Borrower with or the merger
of the Borrower into any other corporation if (i) the continuing or
surviving corporation expressly assumes in writing the obligations of
the Borrower under this Agreement and (ii) immediately after giving
effect thereto, such corporation could incur at least $1 of additional
Funded Debt under subdivision 6(A)(1) and no event of default under
subparagraph 7(A) shall exist and no event which, after the giving of
notice or the lapse of time or both, would constitute such an event of
default shall exist; or
(2) sell or otherwise dispose of all or any part of the assets
of the Borrower and its Restricted Subsidiaries other than (a) in the
ordinary course of business, or (b) to the Borrower or another
Restricted Subsidiary, so long as, after giving effect thereto, no
event of default under subparagraph 7(A) shall exist and no event
which, after the giving of notice or lapse of time or both, would
constitute an event of default shall exist, or (c) the sale or other
disposition of the assets of any of its Restricted Subsidiaries which
is not a Significant Restricted Subsidiary of the Borrower, so long as,
after giving effect thereto, no event of default under subparagraph
7(A) shall exist and no event which, after the giving of notice or
lapse of time or both, would constitute an event of default shall
exist, or (d) the sale or other disposition of any "margin stock", as
at the time defined in Regulation U of the Board of Governors of the
Federal Reserve System, or (e) the sale or other disposition of all or
substantially all of the assets of the Borrower to any corporation into
which the Borrower could be merged under subdivision 6(C)(l)(c),
provided that each of the conditions of such subdivision shall have
been fulfilled with the same effect as though such sale of assets were
a merger of the Borrower into the acquiring corporation, or (f) any
sale for cash in which such cash, when taken together with the cash
proceeds of all other asset sales (other than asset sales otherwise
permitted by this subdivision (2)) since the Effective Date, does not
exceed $5,000,000.
(D) Loans, Advances and Contingent Liabilities. The Borrower will not,
and will not permit any of its Restricted Subsidiaries, if any, to make loans or
advances to any other Person or give a Guarantee of, assume, endorse, or
otherwise become contingently liable upon the obligation of any other Person, in
excess in the aggregate in respect of all such loans, advances, Guarantees,
34
assumptions, endorsements and contingent liabilities of 7% of
Stockholders' Equity except:
(1) loans or advances by the Borrower to any of its
Restricted Subsidiaries or to any Person which simultaneously
therewith becomes an Acquired Company;
(2) loans or advances by any Restricted Subsidiary to
the Borrower or to another Restricted Subsidiary of the
Borrower;
(3) Guarantees by the Borrower or by any of its Restricted
Subsidiaries of obligations or liabilities (other than for the payment
of borrowed money) incurred in the ordinary course of business by the
Borrower or of any of its Restricted Subsidiaries or by any Person
which simultaneously therewith becomes an Acquired Company;
(4) assumptions by the Borrower or any of its Restricted
Subsidiaries of obligations or liabilities of any Acquired
Company in connection with the acquisition thereof;
(5) the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business;
(6) Guarantees in connection with IRB Financings
permitted by subparagraph 6(A) or listed on Exhibit E;
(7) contingent liabilities arising in connection with
the Letters of Credit or the BAI Letters of Credit; or
(8) other loans, advances, Guarantees, assumptions,
endorsements and contingent liabilities, provided that, immediately
after giving effect to the creation, incurrence or assumption thereof,
the aggregate principal amount of such loans, advances, Guarantees,
assumptions, endorsements and contingent liabilities shall not exceed
$5,000,000.
(E) Investments. The Borrower will not, and will not permit any of its
Restricted Subsidiaries to make, incur, assume, or suffer to exist any
Investment in any other Person except:
(1) Investments in marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any
agency thereof maturing within one year from the date of acquisition
thereof;
(2) Investments in marketable direct obligations issued by any
state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within
one year from the date of acquisition thereof and currently having at
least an A Rating from either
35
Standard & Poor's Corporation or Xxxxx'x Investors Service,
Inc.;
(3) Investments in commercial paper currently having at least
an A rating from either Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc., maturing not more than 270 days from the date
of the creation thereof and not directly or indirectly renewable or
extendable at the option of the debtor by its terms or by the terms of
any instrument or agreement relating thereto to a date more than 270
days from the date of creation thereof;
(4) Investments in certificates of deposit issued by any bank
incorporated under the laws of the United States or any state thereof
or the District of Columbia and having a combined capital and surplus
of not less than $50,000,000;
(5) Investments in bankers' acceptances eligible for
rediscount under requirements of The Board of Governors of the Federal
Reserve System and accepted by a bank of the type described in
subdivision 6(E)(4);
(6) Investments in obligations of the type described in
subdivisions 6(E)(1) through 6(E)(4) purchased from a bank of the type
described in subdivision 6(E)(4) pursuant to repurchase agreements
obligating such bank to repurchase such obligations not later than 90
days after the purchase thereof;
(7) Investments by the Borrower in any Restricted Subsidiary
of the Borrower or any Person which simultaneously therewith becomes an
Acquired Company or by any Restricted Subsidiary of the Borrower in the
Borrower or another Restricted Subsidiary of the Borrower or in any
Person which simultaneously therewith becomes an Acquired Company;
(8) Investments in any Person pursuant to a plan for the
acquisition of a majority of the Voting Stock of such Person, provided
that either (a) the Borrower and its Restricted Subsidiaries shall
acquire a majority of such Voting Stock issued and outstanding within
nine months of the date of the first acquisition of any such Voting
Stock under such plan, or (b) if such acquisition of a majority of
Voting Stock shall not have been completed within nine months after the
initial Investment in such Person all Investments in such Person
theretofore acquired shall be treated as assets other than current
assets for the purpose of this Agreement;
(9) Investments in settlement of Indebtedness created in the
ordinary course of business owing to the Borrower or any of its
Subsidiaries, provided that the amount of Indebtedness settled by the
receipt of such Investments during any calendar year shall not exceed
1% of the consolidated revenues of the Borrower and its Restricted
Subsidiaries during such year;
36
(10) Investments in any Person (other than Investments
permitted by the preceding subdivisions of this subparagraph 6(E)),
provided that the aggregate value of all such Investments on the books
of the Borrower and its Restricted Subsidiaries immediately after
giving effect to any such Investment in any such Person shall not
exceed 7% of Stockholders' Equity; and
(11) Restricted Investment.
(F) Payments on Stock; Restricted Investment.
(1) Except as provided hereinafter in this subparagraph 6(F),
the Borrower will not make, and will not permit any of its Restricted
Subsidiaries to make, any Payment on Stock or Restricted Investment,
other than a Permitted Buyback, unless, immediately after giving effect
to the proposed Payment on Stock or Restricted Investment, the sum of
the aggregate amount of all Payments on Stock (other than Permitted
Buybacks) subsequent to the Effective Date to and including the date of
such proposed Payment on Stock or Restricted Investment, plus the
aggregate amount of all Restricted Investments made by the Borrower or
any Restricted Subsidiary during such period (but disregarding any
Investment which was a Restricted Investment when made, but which on
the date of determination could have been made pursuant to one of the
subdivisions of subparagraph 6(E) other than subdivision 6(E)(10) and
(11)), shall not exceed the sum of (a) $1,000,000, plus (b) 50% of Net
Income subsequent to the Effective Date (taken as a single accounting
period), plus (c) the net cash proceeds from the issuance or sale of
equity securities of the Borrower subsequent to the Effective Date;
provided, that, the cumulative Payment on Stock and Restricted
Investment shall not in the aggregate exceed $10,000,000.
Notwithstanding the foregoing, (x) no Payment on Stock (other than
Permitted Buybacks) or Restricted Investment may be declared or made
until on or after the first date on which, after giving effect thereto,
Aggregate Senior Funded Debt would be equal to or less than 100% of
Stockholders' Equity and (y) any dividend which could be paid in
compliance with this paragraph 6(F) at the date of its declaration may
continue to be paid notwithstanding any subsequent change, which change
was unforeseen at the time of the declaration of such dividend.
(2) Notwithstanding the terms of the foregoing subdivision
(1), the Borrower may purchase or otherwise acquire shares of its
capital stock in an aggregate amount not to exceed $500,000 during the
term of this Agreement for the purpose of awarding such stock to its
employees, agents, representatives or other persons transacting
business with the Borrower; provided, however, that any such Payments
on Stock shall be included in determining whether the Borrower
37
satisfies the requirements of the first sentence of
subdivision (1).
(3) The Borrower may make Permitted Buybacks at any
time.
(G) Sale and Leaseback. The Borrower will not, and will not permit any
Restricted Subsidiary to, enter into any arrangement whereby the Borrower or
such Restricted Subsidiary shall sell or transfer, directly or indirectly, all
or any substantial part of its fixed assets in anticipation of the leaseback of
such assets within one year provided, however, Sale and Leasebacks shall be
permitted provided (i) the proceeds of any Sale and Leaseback shall be used to
make a prepayment on the principal amount of Loans pursuant to subdivision
2(C)(1) and (ii) that the amount thereof be deemed a reduction in the
Commitment, in the same amount as the prepayment, pursuant to subparagraph
(1)(D).
(H) Obligations as Lessee. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, enter into any
lease of real or personal properties or assets, unless after giving effect to
payments under any such proposed lease, aggregate payments due in any one fiscal
year under all such leases shall not exceed the greater of $10,000,000 or 10% of
Stockholders' Equity. Leases covered by this subparagraph 6(H) shall be only
those which are not capitalized under generally accepted accounting principles.
(I) Negative Pledges, Restrictive Agreements, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any agreement
(excluding this Agreement, any other Loan Document, any agreement governing
indebtedness which is both permitted to be incurred pursuant to subparagraph
6(A) and secured by mortgages, liens or other security interests permitted by
subparagraph 6(B) or, with respect to subdivision (1) below, the agreements
disclosed in Exhibit E) prohibiting:
(1) the creation or assumption of any lien upon its
properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of the Borrower or any other Person to amend
or otherwise modify this Agreement or any other Loan Document; or
(2) the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of dividends, advances,
repayments of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
38
(J) Financial Covenants. Borrower will not:
(1) permit its Fixed Charge Coverage Ratio as determined for
any Measurement Period to be less than the ratio set forth below for
such date:
Fiscal Quarter Ending Ratio
--------------------- ----------
December 31, 1995 1.75 : 1.0
March 31, 1996 1.75 : 1.0
June 30, 1996 1.75 : 1.0
September 30, 1996 1.75 : 1.0
December 31, 1996 1.75 : 1.0
March 31, 1997 2.00 : 1.0
June 30, 1997 2.00 : 1.0
September 30, 1997 2.00 : 1.0
December 31, 1997 2.00 : 1.0
March 31, 1998 and thereafter 2.25 : 1.0
(2) permit its Interest Coverage Ratio as determined for any
Measurement Period to be less than the ratio set forth below for such
date:
Fiscal Quarter Ending Ratio
--------------------- ----------
December 31, 1995 2.00 : 1.0
March 31, 1996 2.00 : 1.0
June 30, 1996 2.00 : 1.0
September 30, 1996 2.00 : 1.0
December 31, 1996 2.00 : 1.0
March 31, 1997 2.25 : 1.0
June 30, 1997 2.25 : 1.0
September 30, 1997 2.25 : 1.0
December 31, 1997 2.25 : 1.0
March 31, 1998 2.50 : 1.0
June 30, 1998 2.50 : 1.0
September 30, 1998 2.50 : 1.0
December 31, 1998 2.50 : 1.0
March 31, 1999 and thereafter 3.00 : 1.0
(3) permit its Consolidated Leverage Ratio to be greater
than .65 to 1.0.
39
7. EVENTS OF DEFAULT.
(A) Nature of Events. If one or more of the following events of default
shall occur:
(1) Default in Payment of Obligations. The Borrower shall fail
to make payment of any part of the principal of or interest upon any
Note, any Reimbursement Obligation or Letter of Credit or any deposit
of cash for collateral purposes pursuant to subdivision 2(E)(3) or
2(E)(5), or any fees or other payments owing pursuant to paragraph 2
when due and payable, whether at stated maturity or by acceleration, or
otherwise; or
(2) Incorrect Representation. Without limiting subparagraph
7(A)(10)(iii), any representation or warranty made by the Borrower
herein or any statement or representation made in any certificate,
report, or other document delivered pursuant hereto shall prove to have
been incorrect in any material respect when made or deemed made; or
(3) Default Under Certain Covenants. The Borrower shall
fail to observe or perform any term, covenant or agreement
contained in paragraph 6;
(4) Default Under Other Provisions. The Borrower shall fail to
observe or perform any other term, covenant or agreement contained in
this Agreement and such failure shall continue for 30 days after
written notice thereof shall have been given to the Borrower by the
Agent or any of the Banks; or
(5) Cross Default. Any Funded Debt or Short-Term Borrowings of
the Borrower or any Restricted Subsidiary (other than the Notes) in
excess of $400,000 becomes or is declared to be due and payable prior
to the stated maturity thereof or the Borrower or any of its Restricted
Subsidiaries defaults in the performance of or compliance with any term
of any agreement evidencing or securing such Funded Debt or Short- Term
Borrowings and the effect of such default would be to permit or shall
have caused the acceleration of the payment of such Funded Debt or
Short-Term Borrowings and such default shall continue for more than the
period of grace, if any, specified in such agreement and shall not have
been cured or waived by the holders of such Funded Debt or Short-Term
Borrowings; or the Borrower shall fail to make payment, when due and
payable, of any amounts owing under the BAI Letters of Credit; or any
other event shall have occurred which shall constitute an Event of
Default under Section 13 of the Letter of Credit Agreement; or
(6) Bankruptcy, etc. The Borrower or any Restricted
Subsidiary shall (i) be generally not paying its debts as they
become due, (ii) file, or consent by answer or otherwise to
40
the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to
take advantage of any bankruptcy or insolvency law of any jurisdiction,
(iii) make an assignment for the benefit of its creditors, (iv) consent
to the appointment of a custodian, receiver, trustee or other officer
with similar powers of itself or of any substantial part of its
property, (v) be adjudicated insolvent or be liquidated or (vi) take
corporate action for the purpose of any of the foregoing, or (vii) if a
court or governmental authority of competent jurisdiction shall enter
an order appointing, without consent by the Borrower or any Restricted
Subsidiary, a custodian, receiver, trustee or other officer with
similar powers with respect to it or with respect to any substantial
part of its property, or (viii) if an order for relief shall be entered
in any case or proceeding for liquidation or reorganization or
otherwise to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of
the Borrower or any Restricted Subsidiary, or (ix) if any petition for
any such relief shall be filed against the Borrower or a Restricted
Subsidiary and such petition shall not be dismissed within 60 days; or
(7) Unpaid Judgment. A final judgment for the payment of money
in excess of $400,000 shall be rendered against the Borrower or any of
its Restricted Subsidiaries and within 60 days after entry thereof such
judgment shall not have been discharged or execution thereof stayed
pending appeal or within 30 days after the expiration of any such stay
such judgment shall not have been discharged; or
(8) Material Reportable Events. A Reportable Event shall have
occurred with respect to any Plan and shall be continuing for 30 days
after the Agent shall have notified the Borrower in writing that the
Required Banks have made a determination that, on the basis of such
Reportable Event, (a) in the case of a Plan other than a Multi-employer
Plan, there are reasonable grounds for the termination of such Plan by
the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer
such Plan and the liabilities of the Borrower or any of its Restricted
Subsidiaries arising as a result of such termination or appointment
would decrease Stockholders' Equity by 10% or more, or (b) in the case
of a Multi-employer Plan, there are reasonable grounds for the
reorganization within the meaning of ERISA of such Multi-employer Plan
and the liabilities of the Borrower and its Restricted Subsidiaries
arising as a result of such reorganization would decrease Stockholders'
Equity by 10% or more, unless the Borrower and its Restricted
Subsidiaries have satisfied such liabilities or have made such reserves
as are required by generally accepted accounting principles against
such liabilities, and after giving effect to such satisfaction or
41
reserves, the Borrower is not in violation of any covenant in paragraph
6 in which event such holders (or such Banks) shall not have the right
to make such determination (which would otherwise give rise to an event
of default); or there is a complete or partial withdrawal by the
Borrower or any of its Subsidiaries from a Multi-employer Plan and the
liabilities of the Borrower and its Restricted Subsidiaries arising as
a result of such withdrawal decrease Stockholders' Equity by 10% or
more; or
(9) Control of the Borrower. Any Change in Control
shall occur; or
(10) Impairment of Security, etc. (i) Any security interest or
lien granted pursuant to the Security Agreement or the Pledge Agreement
shall (except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of the Borrower or other obligor
party thereto; (ii) the Borrower or any other Person shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding
nature or enforceability and, with respect to any such other Person,
such contest shall have a reasonable likelihood of being material; or
(iii) any representation or warranty made by the Borrower in Section
3.1.5 of the Security Agreement or Section 3.1.2 of the Pledge
Agreement shall prove to be incorrect when made in any respect;
then (i) upon the happening of any of the events of default specified in
subdivision 7(A)(6) above (other than such an event of default described in
clause (i) of subdivision 7(A)(6) or described in clause (vi) of subdivision
7(A)(6) by virtue of the reference in such clause (vi) to such clause (i)), then
the Notes and all other Obligations hereunder shall automatically and
immediately (without notice or other action by any Bank or the Agent) become due
and payable and all Commitments to make Loans and issue Letters of Credit
hereunder shall be terminated, and (ii) upon the happening of any other event of
default specified above which shall be continuing, the Agent may, with the
consent of the Required Banks, or shall, at the request of the Required Banks,
by written notice to the Borrower, declare the Notes and all other Obligations
hereunder to be due and payable, and all of the foregoing shall thereupon become
and be immediately due and payable, and (in the event of any such declaration)
the Agent shall terminate the Commitments. The Borrower expressly waives any
presentment, demand, protest or other notice of any kind.
(B) Banks' Rights of Set-off. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, set-off or counterclaim
against the Borrower, including, but not limited to, a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Bank under any
applicable bankruptcy, insolvency or other similar law or otherwise, obtain
42
payment in respect of any of its Credit Extensions as a result of which the
unpaid portion of such Credit Extensions shall be proportionately less than the
unpaid portion of the Credit Extensions of any other Bank (1) it shall
simultaneously purchase at par from such other Bank a participation in the
Credit Extensions of such other Bank, so that the aggregate unpaid principal
amount of each Bank's Credit Extensions and its participation in the Credit
Extensions of such other Bank shall be in the same proportion to the aggregate
unpaid principal amount of all Credit Extensions then outstanding as the
principal amount of its Credit Extensions prior to such exercise of banker's
lien, set-off or counterclaim was to the principal amount of all Credit
Extensions outstanding prior to such exercise of banker's lien, set-off or
counterclaim and (2) such other adjustment shall be made from time to time as
shall be equitable to ensure that each of the Banks share such payment pro rata.
43
8. THE AGENT AND COLLATERAL AGENT.
(A) Authorization by Banks. Each Bank authorizes Bank of America
National Trust and Savings Association to act as Agent and Collateral Agent on
its behalf to the extent provided in this Agreement, the Pledge Agreement and
the Security Agreement, as the case may be.
(B) Duties of Agent and Collateral Agent. The Agent shall:
(1) immediately after receiving notice from the Borrower of
the amount of any Loan and the date upon which the same is to be made,
notify each Bank of the amount of its Loan and arrange with each Bank
to make Federal or other immediately available funds available at the
office of the Agent as set forth on Exhibit G in the amount of such
Loan on or before 12:00 noon, New York time, on the date of such Loan,
and after receiving such funds, hold such funds hereunder;
(2) at the time of making each Credit Extension, review, with
the advice of counsel, the documents required by paragraph 4 to be
delivered in connection with such Credit Extension;
(3) pay to the Borrower the amounts received from the Banks if
the Agent and its counsel determine that the conditions set forth in
paragraph 4 have been satisfied, or promptly return to each Bank with
interest the funds collected from such Bank if the Agent, with the
advice of counsel, determines that such conditions have not been
satisfied;
(4) promptly after the making of the Initial Loans, deliver to
each Bank the Note evidencing its interest in such Loans;
(5) remit promptly to each Bank its share of each
payment made by the Borrower under the Notes or hereunder;
(6) perform such duties with respect to the Letters of Credit
in the manner, and at such times, as set forth in subparagraph 2(E);
(7) promptly consult with the Banks concerning (a) all
requests from the Borrower for the consent or waiver under the
provisions of this Agreement and the other Loan Documents as to any act
or omission to act, and (b) concerning any event of default; and
(8) promptly give any notice or declaration hereunder to the
Borrower, and promptly send a copy of such notice or declaration to
each Bank. The Collateral Agent agrees to perform its duties under the
Pledge Agreement and Security Agreement as set forth therein. The
duties and responsibilities of the Agent and the Collateral Agent shall
44
be limited to those expressly set forth in this Agreement, the Pledge
Agreement and the Security Agreement, as the case may be, and the Agent
and the Collateral Agent shall not be obliged to recognize any other
agreement between any or all of the parties hereto or thereto even
though reference to any such agreement may be made herein or therein
and whether or not the Agent or the Collateral Agent has knowledge of
any such agreement nor shall the Agent or the Collateral Agent be bound
by any waiver, supplement or modification hereof or thereto without its
consent which affects its duties hereunder or thereunder.
(C) Limitation of Liability.
(1) In the performance of its duties under this Agreement, the
Pledge Agreement or the Security Agreement, as the case may be, the
Agent and the Collateral Agent shall exercise the same care that it
exercises in connection with the making and administration of loans for
its own account, but it makes no representation or warranty in
connection with, and it assumes no responsibility for, the solvency,
financial condition or statements of the Borrower, or the sufficiency
or accuracy of the form, execution, validity or genuineness of this
Agreement, the Notes, each other Loan Document or any other document
relating to the Credit Extensions, or of any endorsement thereon, or
for any lack of endorsement thereof, or for any description therein if
taken or omitted by it in good faith or in the exercise of its own best
judgment. The Agent and the Collateral Agent shall not be responsible
or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute
or deliver this Agreement, the Notes, each other Loan Document, or any
such other document. Each of the Banks represents and warrants to the
Agent and the Collateral Agent that it has made its own independent
judgment with respect to entering into this Agreement, the Notes and
each other Loan Document and undertaking its obligations hereunder and
thereunder without reliance on the Agent, the Collateral Agent or any
other Bank, and will, independently and without reliance on the Agent,
the Collateral Agent or any other Bank, continue to make its own credit
decisions in taking or not taking action under this Agreement, the
Notes and each other Loan Document.
(2) Neither the Agent, the Collateral Agent nor any of their
directors, officers or employees shall be liable for any act taken or
omitted under this Agreement, the Pledge Agreement or the Security
Agreement, as the case may be, if taken or omitted by it in good faith
or in the exercise of its own best judgment (except for its or such
other person's own gross negligence or willful misconduct). The Agent
and the Collateral Agent shall also be fully protected in relying upon
any written notice, demand, certificate or document which the Agent or
the Collateral Agent, as the case may be, in good
45
faith believes to be genuine. The Agent and the Collateral Agent may
consult with legal counsel of its own choice and shall be under no
liability for any action taken or suffered in good faith by it in
reliance upon the opinion of such counsel.
(D) Expenses. The Banks agree that they will on demand reimburse the
Agent and the Collateral Agent, in its capacity as such, for any and all costs,
expenses and disbursements which may be incurred or made by it in connection
with the Credit Extensions for which it is not reimbursed at any time by or on
behalf of the Borrower. Any such costs, expenses and disbursements shall be
charged to each Bank pro rata in accordance with its respective Percentage,
provided that no Bank shall be liable for the payment of any portion of any
costs, expenses or disbursements resulting solely from the Agent's or Collateral
Agent's gross negligence or willful misconduct.
(E) Resignation of Agent. The Agent or the Collateral Agent may, at any
time resign by giving at least thirty (30) days' advance written notice thereof
to the Borrower and each Bank by hand delivery or certified mail. Upon receipt
or delivery of such notice, the Banks shall promptly appoint one of the Banks to
serve as the successor Agent or the Collateral Agent, as the case may be, and,
upon such Bank's acceptance of said appointment as provided in subparagraph
8(F), the resignation of the predecessor Agent or the Collateral Agent, as the
case may be, shall become effective. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent's
notice of resignation the retiring Agent's resignation shall nevertheless
thereupon become effective and the Banks shall perform all of the duties of the
Agent hereunder. A pro-rated refund of any fees paid by Borrower to Agent
pursuant to subdivision 2(D)(1) shall be paid to Borrower by the Agent upon the
Agent's resignation.
(F) Acceptance of Appointment.
(1) Any successor Agent or Collateral Agent appointed as
provided in subparagraph 8(E) shall execute, acknowledge and deliver to
the Borrower and to its predecessor Agent or Collateral Agent, as the
case may be, an instrument accepting such appointment hereunder, and
thereupon the resignation of the predecessor Agent or Collateral Agent,
as the case may be, shall become effective and such successor Agent or
Collateral Agent, as the case may be, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, the Pledge
Agreement or the Security Agreement, as the case may be, with like
effect as if originally named as Agent or Collateral Agent, as the case
may be, herein or therein; but, nevertheless, on the written request of
the Borrower or of the successor Agent or Collateral Agent, as the case
may be, upon payment of its charges then unpaid, the Agent or
Collateral Agent, as the case may be, ceasing to act
46
shall execute and deliver an instrument transferring to such successor
Agent or Collateral Agent, as the case may be, all the rights and
powers of the Agent or Collateral Agent, as the case may be, so ceasing
to act. Upon request of any such successor Agent or Collateral Agent,
as the case may be, the Borrower shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to
such successor Agent or Collateral Agent, as the case may be, all such
rights and powers.
(2) Upon acceptance of appointment by a successor Agent or
Collateral Agent, as the case may be, the Borrower shall mail a notice
of the succession of such Agent or Collateral Agent, as the case may
be, to all of the Banks at their respective addresses as shown on the
then register of Notes maintained by the Borrower. If the Borrower
fails to mail such notice within ten (10) days after acceptance of
appointment by the successor Agent or Collateral Agent, as the case may
be, the successor Agent or Collateral Agent, as the case may be, shall
cause such notice to be mailed at the expense of the Borrower.
47
9. DEFINITIONS.
For all purposes of this Agreement, the following terms have the
meanings specified, unless the context otherwise requires:
"Acquired Company" shall mean (1) any Person 90% of the Voting
Stock of which is acquired by the Borrower and one or more Restricted
Subsidiaries and which is not irrevocably designated an Unrestricted
Subsidiary in accordance with the provisions set forth in the
definition of "Restricted Subsidiary", (2) any Person consolidated with
or merged into, the Borrower or any of its Restricted Subsidiaries, or
(3) any Person substantially all of the assets of which (or of a branch
or division of which) are acquired by the Borrower or any of its
Restricted Subsidiaries, provided that only the acquired branch or
division shall be deemed an Acquired Company in the case of the
acquisition of any branch or division.
"Adjustment Date" shall mean after the Initial Adjustment
Date, each date which is 45 days after the end of a fiscal quarter of
the Borrower.
"Agreement" shall mean this Amended and Restated Credit
Agreement dated as of November 15, 1995 among the Borrower, the Banks,
the Issuer and the Agent.
"Aggregate Funded Debt" shall mean as of any date of
determination, the total of Aggregate Senior Funded Debt and Aggregate
Subordinated Funded Debt as of such date.
"Aggregate Senior Funded Debt" shall mean as of any date of
determination, the aggregate principal amount of Senior Funded Debt of
the Borrower and its Restricted Subsidiaries as of such date,
determined in accordance with generally accepted accounting principles
on a consolidated basis after eliminating all intercompany
transactions, provided that Current Maturities shall not be included in
Aggregate Senior Funded Debt.
"Aggregate Subordinated Funded Debt" shall mean as of any date
of determination, the aggregate principal amount of Subordinated Funded
Debt of the Borrower and its Restricted Subsidiaries as of such date,
determined in accordance with generally accepted accounting principles
on a consolidated basis after eliminating all intercompany
transactions, provided that Current Maturities shall not be included in
Aggregate Subordinated Funded Debt.
"Applicable Margin" shall mean the applicable percentage per
annum with respect to the Base Rate or Eurodollar Rate, as the case may
be, to be added in accordance with subdivision 2(B)(4).
48
"Attorneys Costs" shall mean all fees and disbursements of any
law firm or other external counsel and, without duplication, the
allocated cost of internal legal services and all reasonable
disbursements of internal counsel.
"BAI" shall mean Bank of America Illinois in its
individual capacity.
"BAI Letters of Credit" shall mean, collectively, the letters
of credit issued from time to time by BAI for the account of the
Borrower pursuant to the Letter of Credit Agreement, such letters of
credit to be in an aggregate principal amount not exceeding at any one
time $15,000,000. Anything in this Agreement to the contrary
notwithstanding, the Letters of Credit shall not include the BAI
Letters of Credit.
"Base Rate" shall mean the sum of (a) the higher of (i) the
rate of interest publicly announced from time to time by the Agent as
its reference rate or (ii) the Federal Funds Rate plus 1/2% as in
effect from time to time, and (b) the Applicable Margin. The Agent's
reference rate is a rate set by the Agent based upon various factors
including the Agent's costs and desired return, general economic
conditions, and other factors, and is used as a reference point for
pricing some loans; however, the Agent may price loans at, above or
below such rate. Any change in such rate shall take effect on the day
specified in the public announcement of such change.
"Business Day" shall mean any day not a Saturday, Sunday or
legal holiday in the States of Illinois, New Jersey, New York,
California, Michigan, Georgia, on which banks are open for business in
New York City, Chicago, Los Angeles, San Francisco, Detroit and
Atlanta, provided, however, that when used in connection with a Loan at
the Eurodollar Rate, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capital Expenditures" shall mean, for any period and with
respect to any Person, the aggregate of all expenditures by such Person
and its Subsidiaries for the acquisition or leasing of fixed or capital
assets or additions to equipment (including replacements, capitalized
repairs and improvements during such period) which are capitalized
under GAAP on a consolidated balance sheet of such Person and its
Subsidiaries. For the purpose of this definition, the purchase price of
equipment which is purchased simultaneously with the trade-in of
existing equipment owned by such Person or any of its Subsidiaries or
with insurance proceeds shall be included in Capital Expenditures only
to the extent of the gross amount of such purchase price less the
credit granted by the seller of such equipment for such equipment being
traded
49
in at such time, or the amount of such proceeds, as the case
may be.
"Capitalized Lease Obligations" shall mean all monetary
obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease.
"Change in Control" shall mean the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or more of
the outstanding shares
of Voting Stock of the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Collateral Agent" shall mean Bank of America National Trust
and Savings Association in its capacity as collateral agent under the
Pledge Agreement and Security Agreement, and includes each other Person
as shall have subsequently been appointed collateral agent pursuant to
the terms thereof.
"Commitment" shall mean each Bank's commitment set forth on
Exhibit A, as such commitment may be permanently reduced or terminated
pursuant to subparagraph 1(D) hereof.
"Commitment and Fee Letters" shall mean the letters dated
October 13, 1995 between the Borrower, BA Securities, Inc., the Agent
and BAI.
"Consolidated Leverage Ratio" shall mean as at the end of
any fiscal quarter of the Borrower, the ratio of:
(a) Funded Debt
to
(b) the sum of:
(i) Funded Debt
plus
(ii) Net Worth.
"Credit Extension" shall mean, as the context may
require,
(a) the making of a Loan by a Bank; or
50
(b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any existing
Letter of Credit, by an Issuer.
"Current Maturities" shall mean, as of any date of
determination, that portion of Senior Funded Debt or Subordinated
Funded Debt outstanding on such date which by its terms or by the terms
of any instrument or agreement relating thereto matures on demand or
within one year from such date (whether by way of sinking fund, other
required prepayment or final payment at maturity) and is not directly
or indirectly renewable, extendible or refundable, at the option of the
debtor under any agreement or firm commitment in effect on such date,
to a date one year or more from such date.
"Disbursement" shall mean any payment made under a Letter of
Credit by the Issuer thereof to the Beneficiary (or its assignee or
transferee) of such Letter of Credit.
"Disbursement Date" shall mean the date designated for payment
upon presentment of any Letter of Credit to the applicable Issuer.
"EBIT" shall mean, for any measurement period, the sum
for such period of:
(a) Net Income;
(b) Net Interest Expense to the extent deducted in
determining such Net Income; and
(c) all taxes on or measured by income to the
extent deducted in determining such Net Income;
provided, however, that for purposes of this definition, Net Income
shall be computed without giving effect to extraordinary losses or
extraordinary gains.
"EBITDA" shall mean, for any measurement period, the sum
for such period of:
(a) EBIT; and
(b) the aggregate amount of depreciation expense
and amortization expense to the extent deducted in
determining such Net Income.
"Effective Date" shall mean the date on which each of the
conditions set forth in subparagraph 4(A) has been satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
51
"Eurodollar Rate" shall mean an interest rate per annum
(rounded upward, if necessary, to the nearest 1/16 of 1%) equal to the
sum of:
(a) the interest rate per annum at which deposits in
United States dollars in an amount approximately equal to the
principal amount of the Loan for which the determination is
being made and with a maturity equal to the applicable
Interest Period are offered to the London office of the Agent
in immediately available funds in the London interbank market
at approximately 11:00 am., London time, two (2) Business Days
prior to the commencement of such Interest Period, plus
(b) the Applicable Margin.
"Existing Banks" shall mean Bank of America Illinois; Chemical
Bank; NBD Bank; The Toronto-Dominion Bank; Trust Company Bank; The Bank
of Tokyo Trust Company; The Bank of New York; Bank of Scotland;
Girocredit Bank; and Bank of America National Trust and Savings
Association.
"Existing Credit Agreement" shall have the meaning set
forth in the first recital.
"Excess Purchase Costs" shall mean, as of any date of
determination, (1) the sum of the purchase prices paid for or
attributed to the net assets of all Acquired Companies, minus (2) the
sum of the amounts at which such net assets are reflected in the
balance sheet of the Borrower as of such date, prepared in accordance
with generally accepted accounting principles or in the consolidated
balance sheet of the Borrower and its Restricted Subsidiaries as of
such date, prepared in accordance with generally accepted accounting
principles on a consolidated basis, after eliminating all intercompany
items, as the case may be.
"Federal Funds Rate" shall mean, for any day, the rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such day opposite the
caption "Federal Funds (Effective)." If on any relevant day the
appropriate rate for such previous day is not yet published in
H.15(519), the rate for such day will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected
by the Agent.
"Final Maturity Date" shall mean November 14, 2000.
"Fixed Charge Coverage Ratio" shall mean, as of the end
of any Measurement Period, the ratio of:
52
(a) the sum for such period of:
(i) EBITDA;
plus
(ii) the aggregate rent and lease payments
(other than payments in respect of Capitalized Lease
Obligations) made by the Borrower and its
Subsidiaries on a consolidated basis;
minus
(iii) Capital Expenditures;
to
(b) The sum for such period of:
(i) all interest expense, as such entry
appears on the Borrower's consolidated audited
financial statement, in accordance with GAAP;
plus
(ii) the aggregate rent and lease payments
(other than payments in respect of Capitalized Lease
Obligations) made by the Borrower and its
Subsidiaries on a consolidated basis.
"Funded Debt" shall mean, as of any date of determination, (i)
all Indebtedness in respect of borrowed money and (ii) all Indebtedness
with respect to Interest Rate Protection Agreements. Notwithstanding
the foregoing, in no case will Funded Debt include any amounts
representing either deferred income taxes or lease or installment
purchase obligations unless such lease or installment purchase
obligations are required to be capitalized under generally accepted
accounting principles.
"Guarantee" shall mean any obligation, contingent or
otherwise, of any Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person in any manner,
whether directly or indirectly, and including, without limitation, any
obligation of such other Person, direct or indirect, contingent or
otherwise, (1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any direct or indirect security
therefor, (2) to purchase property, securities, or services for the
purpose of assuring the owner of such Indebtedness of the payment of
such Indebtedness, (3) to maintain working capital, equity capital, or
other financial statement condition of such other Person so as to
enable such other
53
Person to pay such Indebtedness or otherwise to protect the owner
thereof against loss in respect thereof, or (4) entered into for the
purpose of assuring in any manner the owner of such Indebtedness of the
payment of such Indebtedness or to protect such owner against loss in
respect thereof.
"Indebtedness" as applied to any Person shall mean, as of any
date of determination, all indebtedness, obligations and liabilities
which in accordance with generally accepted accounting principles would
be included in the liability side of a balance sheet of such Person as
at such date, including, without limitation (1) all amounts for
guarantees, endorsements (other than for collection or deposit in the
ordinary course of business) and other contingent obligations in
respect of, or to purchase or otherwise acquire or become liable upon,
indebtedness, obligations or liabilities of other Persons, (2) all
lease or installment purchase obligations of such Person which are
required to be capitalized under generally accepted accounting
principles and (3) all net obligations with respect to Interest Rate
Protection Agreements. A renewal or extension of any Indebtedness shall
be deemed to be an incurrence of liability in respect of such
Indebtedness as so renewed or extended.
"Initial Adjustment Date" shall mean February 14, 1996.
"Initial Loans" shall mean Loans evidenced by Notes signed and
dated the Effective Date.
"Interest Coverage Ratio" shall mean, for any Measurement
Period, the ratio of:
(a) EBIT
to
(b) Net Interest Expense.
"Interest Payment Date" shall mean (1) as to any Loan at the
Eurodollar Rate, the last day of an Interest Period, provided that, in
the case of any Loan at the Eurodollar Rate with an Interest Period in
excess of three months, each day within such Interest Period which
would be the last day of an Interest Period commencing on the same date
but having a duration of three months or any integral multiple of three
months shall also be an Interest Payment Date, and (2) as to any Loan
at the Base Rate, the first day of July, October, January and April,
commencing on January 1, 1996 or, if such day is not a Business Day,
the next succeeding Business Day.
"Interest Period" shall mean, as to any Loan at the Eurodollar
Rate, the period commencing on the date of such Loan and ending on the
numerically corresponding day (or if there is no corresponding day, the
last day) in the calendar
54
month that is 1, 2, 3, 6 or 12 months thereafter, as the Borrower may
elect, and thereafter, each period commencing on the last day of the
next preceding Interest Period for such Loan at the Eurodollar Rate and
ending on the numerically corresponding day (or if there is no
corresponding day, the last day) in the calendar month that is 1, 2, 3,
6 or 12 months thereafter, as the Borrower may elect, and provided that
(a) if any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day, (b) no Interest Period
with respect to a Loan shall end later than the Final Maturity Date.
"Interest Rate Protection Agreements" shall mean any interest
rate swaps, caps, collars or similar arrangements entered into to hedge
interest rate risk (and not for speculative purposes).
"Investments" shall mean to purchase or acquire the
obligations or stock of, or any other interest in, any Person.
"IRB Financing" shall mean any industrial development or
pollution control financing made pursuant to Section 103 of the
Internal Revenue Code of 1986, as amended, or any successor statute.
"Issuer" shall mean Bank of America Illinois in its capacity
as issuer of the Letters of Credit. At the request of the Borrower,
another Bank acceptable to the Agent (which acceptance shall not be
unreasonably withheld) shall issue one or more Letters of Credit
hereunder.
"Xxxxx Corporation Litigation" shall mean litigation regarding
the purchase of certain assets from Xxxxx Corporation at allegedly less
than fair market value by a predecessor of the Borrower.
"Letter of Credit" shall mean one or more documentary or
standby letters of credit issued by Issuer pursuant to the terms hereof
(each a "Letter of Credit" and collectively the "Letters of Credit").
"Letter of Credit Agreement" shall mean the Amended and
Restated Letter of Credit Agreement, substantially in the form of
Exhibit J hereto, as further amended, supplemented, restated or
otherwise modified from time to time.
"Letter of Credit Outstandings" shall mean, on any date,
an amount equal to the sum (without duplication) of
55
(a) the then aggregate amount which is undrawn and
available under all Letters of Credit issued and
outstanding
plus
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
"Level I" shall have the meaning specified in subdivision
2(B)(4).
"Level II" shall have the meaning specified in
subdivision 2(B)(4).
"Level III" shall have the meaning specified in
subdivision 2(B)(4).
"Level IV" shall have the meaning specified in
subdivision 2(B)(4).
"Leverage Ratio Certificate" shall mean a certificate duly
executed by the president, or authorized responsible officer, vice
president or their designee, of the Borrower, substantially in the form
of Exhibit C (with such changes thereto as may be agreed upon from time
to time by the Agent and the Borrower), and including therein, among
other things, calculations supporting the information contained
therein.
"Loan" shall mean individually a loan, and collectively, the
loans made to the Borrower under subdivision 1(A)(1) of this Agreement.
"Loan Documents" shall mean, collectively, this Agreement, the
Notes, the Letters of Credit, the Security Agreement, the Pledge
Agreement, and all Interest Rate Protection Agreements between the
Borrower and any Bank or affiliates of any Bank.
"Measurement Period" shall mean any period of four consecutive
fiscal quarters of the Borrower and ending on the last day of a fiscal
quarter of the Borrower taken as one accounting period.
"Multiemployer Plan" shall mean any multiemployer plan as
defined in Section 3(37) of ERISA.
"Net Income" for any Measurement Period shall mean the
aggregate, without duplication, of (1) the net income of the Borrower
and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with generally accepted accounting
principles, after eliminating all intercompany transactions, and after
eliminating portions of earnings properly attributable to minority
interests, if
56
any, in capital stock of Restricted Subsidiaries, and (2) the net
income for the period in question of any Acquired Company acquired
after the beginning of such period, provided that the net income
specified in subdivision (2) of this definition shall be determined on
the same basis specified in subdivision (1).
"Net Interest Expense" shall mean, for any Measurement
Period:
(a) the aggregate amount of interest expense of the
Borrower and its Subsidiaries for such period, as determined
on a consolidated basis in accordance with GAAP
less
(b) the aggregate interest income of the Borrower and
its Subsidiaries, as determined in accordance with
GAAP.
"Net Worth" shall mean, at any time, all amounts which, in
accordance with GAAP, would be included under shareholders' equity on a
consolidated balance sheet of Borrower and its Subsidiaries (excluding
foreign currency translation adjustments).
"Notes" shall mean the promissory notes of the Borrower
evidencing the obligation of the Borrower to repay the Loans.
"Obligations" shall mean all obligations (monetary or
otherwise) of the Borrower arising under or in connection with this
Agreement, the Notes and each other Loan Document.
"Payments on Stock" shall mean the declaration or payment of
dividends on capital stock of the Borrower, purchases, redemptions,
retirements or other acquisitions of capital stock of the Borrower, or
distributions to shareholders of the Borrower, excluding, however, any
of the foregoing which are payable solely in capital stock of the
Borrower.
"Percentage" shall mean, relative to any Bank, the percentage
set forth opposite such Bank's name on Exhibit A hereto, as such
percentage may be adjusted from time to time pursuant to subdivision
1(D)(3) or 11(H).
"Permitted Buyback" shall mean a repurchase or redemption of
the Borrower's Common Stock which (a) is pursuant to a Stock Purchase
Agreement, (b) occurs when no event of default under subparagraph 7(A)
hereof (or event which, after the giving of notice or lapse of time or
both, would constitute an event of default) has occurred and is
continuing or would result therefrom and (c) would not, when aggregated
with all
57
Permitted Buybacks during the preceding twelve months, exceed
$1,000,000.
"Person" shall mean any corporation, partnership, joint
venture, government, association, natural person or other entity.
"Plan" shall mean an employee benefit plan or other plan
maintained for employees of the Borrower or any of its Subsidiaries
which is covered by Title IV of ERISA.
"Pledge Agreement" shall mean the Amended and Restated Pledge
Agreement executed and delivered from time to time pursuant to
subdivision 4(A)(4), substantially in the form of Exhibit H hereto, as
further amended, supplemented, amended and restated or otherwise
modified from time to time.
"Reimbursement Obligation" shall mean the obligation of the
Borrower under subdivision 2(E)(3) to reimburse the Issuer with respect
to each Disbursement (including interest thereon).
"Reportable Event" shall have the meaning assigned to that
term in section 4043(b) of ERISA, but shall include only those events
as to which the Pension Benefit Guaranty Corporation has not waived by
regulation the 30-day notice requirement.
"Required Banks" shall mean the holders of at least 65% in
principal amount of the sum of (a) the unutilized portion under all
then existing Commitments, (b) the then aggregate outstanding principal
amount of all Loans and Letter of Credit Outstandings and (c) the
aggregate principal amount of the letters of credit authorized to be
issued pursuant to the Letter of Credit Agreement.
"Restricted Investment" shall mean Investments in any Person
other than Investments covered by (1) through (10) of subparagraph
6(E), if the Borrower would be permitted to make such Investment
pursuant to and within the limitations specified in subparagraph 6(F).
"Restricted Subsidiary" shall mean any Subsidiary of the
Borrower at least 90% of the outstanding shares of Voting Stock of
which are owned, directly or indirectly, by the Borrower or by one or
more Restricted Subsidiaries of the Borrower or both, other than any
such other Subsidiary of the Borrower which has been irrevocably
designated as an Unrestricted Subsidiary by resolution of the Board of
Directors of the Borrower (a certified copy of which shall promptly be
delivered to the Agent), provided that no such designation shall be
made unless (a) at the time of such designation such Subsidiary does
not own any shares of Voting Stock or Indebtedness of any other
Restricted Subsidiary of
58
the Borrower which is not simultaneously being designated an
Unrestricted Subsidiary of the Borrower or any shares of Voting Stock
or Indebtedness of the Borrower, and (b) immediately after giving
effect to such designation, no condition or event shall exist which
constitutes an event of default under paragraph 7 or which after the
giving of notice or the lapse of time or both would constitute such an
event of default.
"Sale and Leaseback" shall mean any arrangement whereby the
Borrower or any Restricted Subsidiary shall sell or transfer directly
or indirectly, all or any substantial part of its fixed assets in
anticipation of the leaseback of such assets within one year.
"Schedule of Loans and Payments of Principal" shall mean the
grid set forth on page 3 of Exhibit B.
"Security Agreement" shall mean the Amended and Restated
Security Agreement executed and delivered pursuant to subdivision
4(A)(5), substantially in the form of Exhibit I hereto, as further
amended, supplemented, restated or otherwise modified from time to
time.
"Senior Funded Debt" shall mean Funded Debt other than
Subordinated Funded Debt.
"Short-Term Borrowings" shall mean all Indebtedness in respect
of borrowed money maturing on demand or within one year from the date
of the creation thereof and not directly or indirectly renewable or
extendable, at the option of the debtor, by its terms or by the terms
of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof.
"Significant Restricted Subsidiary" shall mean any Restricted
Subsidiary meeting any one of the following conditions: (1) the assets
of such Restricted Subsidiary, or the investments in and advances to
such Subsidiary by the Borrower and its other Restricted Subsidiaries,
exceed 15% of the aggregate assets (excluding the assets of such
Restricted Subsidiary) appearing on a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries, or (2) the net sales and
service revenues of such Restricted Subsidiary for the fiscal year of
the Borrower most recently ended exceed 15% of the net sales and
service revenues (excluding those of such Restricted Subsidiary) shown
on the statement of consolidated net income for such fiscal year, or
(3) such Subsidiary has one or more Subsidiaries and together therewith
would, if considered in the aggregate, constitute a Significant
Restricted Subsidiary within the terms of subdivisions (1) or (2) of
this definition.
59
"Stated Amount" shall mean for any Letter of Credit on any
day, the face amount of such Letter of Credit on such day.
"Stated Expiry Date" shall mean a date no later than the
earlier of (a) the one year anniversary of the date of the issuance or
extension of such Letter of Credit and (b) the Final Maturity Date.
"Stock Purchase Agreement" shall mean each of the Stock
Purchase Agreements, dated as of June 17, 1988, between the Borrower
and certain of its employees.
"Stockholders' Equity" shall mean, as of any date of
determination, the aggregate of the preferred and common stock (but
excluding treasury stock and capital stock subscribed and unissued) and
retained earnings and paid-in capital (including the balance of the
current profit and loss account not transferred to retained earnings)
of the Borrower and its Restricted Subsidiaries as the same properly
appears on a consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of such date prepared in accordance with
generally accepted accounting principles on a consolidated basis, after
eliminating all intercompany transactions less Excess Purchase Costs
associated with acquisitions made after the date hereof.
"Subordinated Funded Debt" shall mean any unsecured Funded
Debt which (a) is created under or evidenced by an instrument
containing provisions for subordination of Funded Debt to the Notes
substantially the same as those set forth in Exhibit F and (b) is
otherwise in form and substance satisfactory to the Required Banks.
"Subsidiary" as applied to any Person (hereinafter called the
parent) shall mean any other Person the majority of the Voting Stock or
other ownership interests of which at the time is owned, directly or
indirectly, by the parent or by one or more of its Subsidiaries or
both.
"Unrestricted Subsidiary" shall mean any Subsidiary of the
Borrower which is not at the time a Restricted Subsidiary of the
Borrower.
"Voting Stock" shall mean, as to the shares of stock of a
particular corporation, all shares of stock or corresponding securities
of such corporation, at the time outstanding and having voting power
for the election of directors or persons performing similar functions
either at all times or so long as no senior class of securities has
such voting power because of default in dividends or because of the
existence of some other default, but shall not include any shares of
stock or corresponding securities having voting power only upon the
occurrence of some contingency.
60
10. AMENDMENTS AND WAIVERS.
(A) No provision or term of this Agreement, any Note, any other Loan
Document or the Letter of Credit Agreement may be changed, waived, discharged or
terminated orally or in writing, except that any term of this Agreement, the
Notes, the other Loan Documents and the Letter of Credit Agreement may be
amended and the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively) with (but
only with) the written consent of the Required Banks; provided that no such
amendment or waiver shall, without the written consent of all of the Banks, (1)
change the amount or time of any required payment or prepayment of any Note or
any part thereof, or of interest thereon, (2) reduce any fees described in
subparagraph 2(E), (3) increase the amount of the Commitments or change any
Bank's participation in the Commitments, (4) change the definition of "Required
Banks", (5) substitute, release, modify or exchange all or substantially all of
the collateral (it being understood that no consent of the Banks is required in
respect of any release of collateral in connection with any sale of assets
pursuant to subparagraph 6(C)), (6) waive any of the conditions specified in
subparagraph 4(A) or 4(B) or (7) modify the requirement in subparagraph 11(H)
that the Borrower obtain the consent of all the Banks to assign or transfer any
of its rights or obligations under this Agreement; provided, further, that no
such amendment or waiver shall, without the written consent of the holders of at
least 69.5% in principal amount of the sum of clauses (a), (b) and (c) of the
definition of Required Banks substitute, release, modify or exchange less than
substantially all of the collateral (it being understood that no consent of the
Banks is required in respect of any release of collateral in connection with any
sale of assets pursuant to subparagraph 6(C)).
(B) No failure on the part of any Bank or the Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by any Bank or the Agent of any right
hereunder 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, and nothing in this Agreement shall be deemed any
waiver, restriction or prohibition of any Bank's right of banker's lien or
set-off; but on the contrary, the Borrower specifically agrees that each Bank
shall have such right and that the same shall be exercisable whether or not the
Notes, Letter of Credit Outstandings and other Obligations hereunder be then
technically due, past due or delinquent.
61
11. MISCELLANEOUS.
(A) Costs and Expenses. The Borrower shall, whether or not the
transactions contemplated hereby shall be consummated:
(1) pay or reimburse on demand for all reasonable costs and
expenses incurred by the Agent, in connection with the development,
preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether
or not consummated), this Agreement, any other Loan Documents and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including the reasonable Attorney Costs incurred by the Agent with
respect thereto;
(2) pay or reimburse each Bank and the Agent on demand for all
reasonable costs and expenses incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or
remedies (including in connection with any "workout" or restructuring
regarding the Loans, and including in any insolvency proceeding) under
this Agreement, any other Loan Documents, and any such other documents,
including Attorney Costs or the cost of any consultants incurred by the
Agent and any Bank; and
(3) pay or reimburse the Agent on demand for all appraisals
(including the allocated cost of internal appraisal services), audits,
environmental inspections and reviews (including the allocated cost of
such internal services), search and filing costs, fees and expenses,
incurred or sustained by the Agent in connection with the matters
referred to under paragraphs (a) and (b) of this Subparagraph 11(A).
(B) Indemnity. Whether or not the transactions contemplated hereby
shall be consummated, the Borrower shall pay, indemnify, and hold harmless each
Bank, the Issuer, the Agent and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs) of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement and any other Loan Document, or the transactions contemplated hereby
and thereby, and with respect to any investigation, litigation or proceeding
(including any insolvency proceeding) related to this Agreement or the Loan
Documents or the Loans or the Letters of Credit, or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, however, that
the Borrower shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person as the
62
same is determined by a final judgment of a court of competent jurisdiction. The
obligations in this Subparagraph (B) shall survive payment of all other
Obligations.
(C) Notices. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing and shall be
delivered, or mailed by first-class mail, postage prepaid, addressed, (1) if to
any Bank, at the address set forth on Exhibit G, to the attention of the officer
designated on such Exhibit G, or at such other address, or to the attention of
such other officer, as shall have been furnished to the Borrower in writing, (2)
if to the Borrower, at 000 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx, to the attention
of Treasurer, or at such other address, or to the attention of such other
officer, as the Borrower shall have furnished to each Bank in writing.
(D) Survival of Representations and Warranties. The representations and
warranties of the Borrower made in Section 3 hereof shall survive the
termination of this Agreement and the payment of the Credit Extensions and all
other Obligations payable hereunder.
(E) Construction. This Agreement, the Notes and the other Loan
Documents shall be deemed to be a contract made under the laws of the State of
New York and shall be governed by and be construed in accordance with the laws
of such State.
(F) Jurisdiction. The Borrower irrevocably agrees that any legal action
or proceeding against it arising out of or in connection with this Agreement,
the Notes and the other Loan Documents or for recognition or enforcement of any
judgment rendered in any such action or proceeding may be brought in any Federal
or State Court sitting in the State and County of New York, and by execution and
delivery of this Agreement, the Borrower hereby irrevocably accepts and submits
to the jurisdiction of each of the aforesaid courts in personam, generally and
unconditionally with respect to any such action or proceedings for itself and in
respect of its property, assets, and revenues. The Borrower hereby also
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have that such action or proceeding brought in such
court has been brought in an inconvenient forum. The Borrower further
irrevocably consents to service of process out of said courts by mailing a copy
thereof, by registered or certified mail, postage prepaid, and irrevocably
waives, to the fullest extent permitted by law, all claim of error by reason of
such service, in any legal action or proceeding brought in accordance herewith.
The Borrower irrevocably waives, in any legal action or proceeding in any
jurisdiction (whether for any injunction, specific performance, damages, or
otherwise), any right or claim of immunity of any kind with respect to itself or
its assets, including without limitation from attachment or execution of
judgment, and the Borrower irrevocably agrees that it and its assets are and
shall be subject to legal action or
63
proceeding, attachment, or execution in respect to its obligations under this
Agreement, the Notes and the other Loan Documents.
(G) Headings. Headings in this Agreement are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
(H) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of, the Borrower, the Banks and the Agent, and their
respective successors and permitted assigns, and no other Person shall acquire
or have any right under or by virtue of this Agreement. The Borrower may not
assign or transfer any of its rights or obligations hereunder without the
consent of all the Banks and, subject to the other terms of this subparagraph
11(H), no bank may assign or transfer its rights hereunder without the consent
of the Borrower, provided that any Bank, without the consent of the Borrower,
the Agent or any other Bank, may grant participations to one or more banks or
other entities in, or to all of, any Loan or Loans, any Note or any Letter of
Credit, and to the extent of any such participation (unless otherwise stated
therein) the participant shall not have any rights, benefits or obligations
hereunder, any Note or any Letter of Credit other than, to the extent stated
therein, the right to consent to any (a) changes in the scheduled payments on
the Notes or Letters of Credit, (b) reductions in interest rates or fees, (c)
changes in the collateral provided for hereunder or (d) changes in the
definition of "Required Banks"; provided, however that notwithstanding any such
grant of participation, the Agent and the Borrower shall, unless both the Agent
and the Borrower agree otherwise, be entitled to deem and treat the original
Banks parties hereto for all purposes of this Agreement, the Notes and the other
Loan Documents as the owners of the Loans and participants in the Letter of
Credit and all amounts payable hereunder shall be calculated as if such
participation or participations had not been granted. Notwithstanding any of the
other terms of this subparagraph 11(H), (i) any Bank may assign all (but not
less than all) of its rights and obligations hereunder without the consent of
the Borrower to a commercial banking institution organized under the laws of the
United States (or State thereof) or a United States branch or agency of a
commercial banking institution and having a combined capital and surplus of at
least $500,000,000 and (ii) any Bank may pledge all or any part of its rights
hereunder to a Federal Reserve Bank without the consent of the Borrower.
(I) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
(J) Waiver of Jury Trial. THE AGENT, BANKS AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS
63-A
OF THE AGENT, THE BANKS OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS
ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
63-B
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
THE GENLYTE GROUP INCORPORATED
By: /s/ Xxxx Xxxxxxx
Title: Vice President - CFO
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS AGENT
By: /s/ Xxxxx x.X. Xxxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS, AS A BANK
AND ISSUER
By: /s/ Xxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
64
BANK OF SCOTLAND
By: /s/ Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
THE BANK OF TOKYO TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President
CHEMICAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President
FIRST FIDELITY BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
NBD BANK
By: /s/ Xxx X. Xxxx
Title: Vice President
65
NATWEST BANK N.A.
By: /s/ Xxxxxx X.X. Xxxxxx
Title: Vice President
SUN TRUST BANK, ATLANTA
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
UNITED JERSEY BANK
By: /s/ Xxxxx X. Xxxx
Title: Vice President
66
EXHIBIT A
List of Banks
-------------
Commitment Percentage
Amount Share
----------- ----------
Bank of America Illinois $17,500,000 14.5833333%
Sun Trust Bank, Atlanta $14,000,000 11.0000000%
The Bank of New York $13,000,000 10.0000000%
Chemical Bank $13,000,000 10.0000000%
NBD Bank $13,000,000 10.8333333%
First Fidelity Bank, N.A. $12,000,000 10.0000000%
United Jersey Bank $12,000,000 10.0000000%
Bank of Scotland $ 8,500,000 7.0000000%
The Bank of Tokyo Trust Company $ 8,500,000 7.0000000%
NatWest Bank N.A. $ 8,500,000 7.0833333%
------------------ ----------------
$120,000,000 100 %
EXHIBIT B
FORM OF NOTE
------------
Secaucus, New Jersey
[U.S.$ ] November __, 1995
THE GENLYTE GROUP INCORPORATED, a Delaware corporation (the "Borrower"),
for value received, hereby promises to pay to the order of [ ] (the "Bank") at
the office of BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent
(the "Agent"), the lesser of the principal sum of [$ ] or the aggregate unpaid
principal amount of all Loans made by the Bank to the Borrower pursuant to the
Amended and Restated Credit Agreement, dated as of November 15, 1995 (the
"Agreement"), among the Borrower, the Banks named therein and the Agent
thereunder, such amount to be evidenced by endorsement thereof by the holder on
the Schedule of Loans and Payments of Principal on the reverse side of this Note
(subject to the proviso set forth below) and to be paid in immediately available
funds on November 14, 2000 and as otherwise provided in the Agreement; and the
Borrower hereby promises to pay interest on the unpaid principal amount of all
Loans from time to time outstanding from the date hereof until stated maturity
or earlier payment, in like funds, at such office, at a rate or rates per annum
and at such times as are provided by the Agreement.
Each Loan and each prepayment or payment made on account of the principal
hereof shall be endorsed by the holder on the Schedule of Loans and Payments of
Principal on the reverse side of this Note, provided, however, that the failure
of the Bank or the Agent to set forth such principal payments, prepayments and
other payments on such schedule shall not in any manner affect the obligation of
the Borrower to repay the Loans made by the Bank in accordance with the terms of
this Note. This Note may be prepaid in whole or in part at the option of the
Borrower and is subject to mandatory prepayment in accordance with the
provisions of the Agreement.
This Note is one of the Notes referred to in, and the holder hereof and the
Borrower are entitled to the benefits of, the Agreement. Upon occurrence of an
event of default specified in the Agreement, the principal hereof and accrued
interest hereon may be declared to be or may become forthwith due and payable as
provided in the Agreement.
This Note shall be deemed to be a contract made under the laws of the
State of New York and shall be governed by and construed in accordance with the
laws of such State.
THE GENLYTE GROUP INCORPORATED
By:
---------------------------------
Title:
------------------------------
2
SCHEDULE OF
LOANS AND PAYMENTS OF PRINCIPAL
================================================================================
Amount of
Principal Unpaid
Amount of Paid of Principal Certified
Date Loan Prepaid Balance by
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3
EXHIBIT C
FORM OF LEVERAGE RATIO CERTIFICATE
----------------------------------
Date: __________, ____
re Amended and Restated Credit Agreement dated as of November 15, 1995 among
The Genlyte Group Incorporated (the "Borrower"), the Banks party thereto,
Bank of America National Trust and Savings Association, as Agent and Bank
of America Illinois, as Issuer (the "Credit Agreement")
-------------------------------------------------------------------------
Bank of America National Trust
and Savings Association
as Agent for the Banks party to the
Amended and Restated Credit Agreement
referred to above
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Agency Management Services 5596
Ladies and Gentlemen:
This Leverage Ratio Certificate is delivered pursuant to subdivision
(2)(B)(4) of the Credit Agreement. Any terms defined in the Credit Agreement and
not defined in this Leverage Ratio Certificate are used herein as defined in the
Credit Agreement.
The Borrower hereby certifies and warrants that, as of the dates set
forth below:
(a) for the Measurement Period ending on or closest to __________,
____, (the "Computation Date") the ratio of (i) Funded Debt as of the
Computation Date to (ii) the sum of Funded Debt and Net Worth for such
Measurement Period was approximately (and in any event not less than)
_____ to _____, as computed on ANNEX 1 hereto;
(b) as of each of the Computation Date and the date hereof, no
Default or Event of Default has occurred and is continuing or will have
occurred and be continuing.
The undersigned is a duly elected, qualified and acting officer of
the Borrower.
IN WITNESS WHEREOF, the Borrower has caused this
Certificate to be executed and delivered, and the certification and
warranties contained herein to be made, this _____ day of
----------, -----.
THE GENLYTE GROUP INCORPORATED
By:
--------------------------------
Name:
Title:
2
ANNEX 1
TO EXHIBIT C
The information described herein is as of _______________, _____ and
pertains to the accounting period from _______________, _____ to
_______________, _____ (the "Measurement Period").
I. Consolidated Leverage Ratio
1. Funded Debt on the last day of
the Measurement Period $
--------
2. The sum of Funded Debt plus Net
Worth, on the last day of the
Measurement Period $
--------
3. Ratio of line 1 to line 2 =
Consolidated Leverage Ratio ______ to _____.
3
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
------------------------------
THE GENLYTE GROUP INCORPORATED (the "Borrower") hereby certifies as of the
date hereof to the Banks which are parties to the Amended and Restated Credit
Agreement, dated as of November 15, 1995 (the "Agreement"), among the Borrower,
the Banks named therein and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent thereunder, as follows (in each case after giving effect
to the transactions to be consummated on this date):
1. Borrower is in compliance with all of the terms, covenants
and conditions of the Agreement.
2. There is no event of default as defined in paragraph 7 of the Agreement
and there is no event which, with the giving of notice or the lapse of time or
both, would constitute such an event of default.
3. The representations and warranties contained in paragraph 3 of the
Agreement, Article III of the Security Agreement (as defined in the Agreement)
and Article III of the Pledge Agreement (as defined in the Agreement) (except
for such changes thereto as are expressly contemplated by the terms of the
Security Agreement or the Pledge Agreement) are true with the same effect as
though such representations and warranties had been made as of the date hereof.
Dated: ___________ __, 19
THE GENLYTE GROUP INCORPORATED
By:
---------------------------------
Title:
------------------------------
EXHIBIT E
THE GENLYTE GROUP INCORPORATED
CONSOLIDATED OUTSTANDING DEBT
AS OF NOVEMBER 15, 1995
--------------------------------------------------------------------------------
Secured Amount
Outstanding
------- ----------------
Massachusetts Industrial Finance Agency
Industrial Development Refunding
Revenue Bonds (Lightolier Project)
Series 1990, maturity date July 29, 2010
(backed by a secured $5,491,081 Bank of
America Illinois Standby Letter of Credit) $ 5,000,000 (a)
New Jersey Economic Development Authority
Industrial Development Refunding Revenue
Bonds (Genlyte Camden County Project)
Series 1990, maturity date December 19,
2009 (backed by a secured $3,915,473 Bank
of America Illinois Standby Letter of Credit) $ ,500,000 (b)
New Jersey Economic Development Authority
Industrial Development Refunding Revenue Bonds
(Genlyte Union County Project) Series 1990,
maturity date October 15, 2009 (backed by a
secured $1,000,000 Bank of America Illinois
Standby Letter of Credit) $ 1,000,000 (c)
9.125% Mortgage Note, maturity date May
1, 2002 $ 310,380 (d)
4.80% Jobs for Fall River Promissory Note,
maturity date June 30, 1999 $ 135,970 (e) (i)
0.00% Jobs for Fall River Promissory Note,
maturity date June 30, 1996 (backed by
a secured $2,000,000 Bank of America
Illinois Standby Letter of Credit) $ 1,700,000 (ii)
Unsecured Amount
Outstanding
--------- ----------------
Short-term Borrowings
- $22,500,000 line in U.S. $ 6,970,000
- $ 5,000,000 ($Can.) line in Canada $ 0
----------------
Total Debt Outstanding $ 19,616,350
================
--------------------------------------------------------------------------------
(a) A mortgage on the facility in Fall River, MA. A security interest in
machinery and equipment in the Fall River facility.
(b) A security interest in machinery and equipment in the Barrington, NJ
facility.
(c) A security interest in machinery and equipment in the Union, NJ
facility.
(d) A mortgage on the facility in Garland, TX.
(e) Three unsecured notes, each in an original principal amount of $50,000
each, produced by quasi-governmental agency for employee hiring and
training.
2
EXHIBIT F
FORM OF SUBORDINATION PROVISIONS
--------------------------------
Subordination.
a. The indebtedness ("Subordinated Debt") evidenced by this instrument is
subordinate and junior in right of payment to all Senior Debt (as defined in
subdivision (b)) of THE GENLYTE GROUP INCORPORATED (the "Company") to the extent
provided herein, and each holder hereof, by his acceptance hereof, agrees to the
subordination herein provided and shall be bound by the provisions hereof.
b. For all purposes of these subordination provisions the term "Senior
Debt" shall collectively mean (1) all principal of and interest on the Notes due
November 14, 2000 of the Company, Letter of Credit Outstandings of the Company
pursuant to the Amended and Restated Credit Agreement, dated as of November 15,
1995, among the Company and the Banks named therein, Bank of America Illinois,
as Issuer and Bank of America National Trust and Savings Association, the Agent
thereunder (and any notes issued in substitution therefor), and all other
monetary obligations of the Company to such Banks pursuant to such Agreement,
and (2) all principal, interest and other monetary obligations of the Company
owing to Bank of America Illinois, as issuer of the letters of credit pursuant
to the Letter of Credit Agreement, dated as of November 15, 1995, between the
Company and Bank of America Illinois. The Senior Debt shall continue to be
Senior Debt and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Debt or extension or renewal of the Senior Debt.
c. In the event of the failure of the Company to make any required payment
of principal of or interest on any Senior Debt, then, unless and until all such
required payments shall have been made, no direct or indirect payment (in cash,
property or securities or by set-off or otherwise) shall be made or agreed to be
made on account of the principal of, or premium, if any, or interest on any
Subordinated Debt, or as a sinking fund for the Subordinated Debt, or in respect
of any redemption, retirement, purchase or other acquisition of any of the
Subordinated Debt.
d. In the event of
(1) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(2) any proceeding for the liquidation, dissolution or other
winding-up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of
creditors, or
(4) any other marshalling of the assets of the Company, all Senior
Debt (including any interest thereon accruing after the commencement of
any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made
to any holder of any Subordinated Debt on account of any Subordinated
Debt. Any payment or distribution, whether in cash, securities or other
property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of
which is subordinate, at least to the extent provided in these
subordination provisions with respect to Subordinated Debt, to the payment
of all Senior Debt at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment),
which would otherwise (but for these subordination provisions) be payable
or deliverable in respect of this Subordinated Debt shall be paid or
delivered directly to the holders of Senior Debt in accordance with the
priorities then existing among such holders until all Senior Debt
(including any interest thereon accruing after the commencement of any
such proceedings) shall have been paid in full.
e. If any payment or distribution of any character or any security,
whether in cash, securities or other property (other than securities of the
Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to Subordinated Debt, to
the payment of all Senior Debt at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by any holder of Subordinated Debt in
contravention of any of the terms hereof and before all the Senior Debt shall
have been paid in full, such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all such Senior Debt in full. In the event of the failure of any holder of
any Subordinated Debt to endorse or assign any such payment, distribution or
security, each holder of Senior Debt is hereby irrevocably authorized to endorse
or assign the same.
f. No present or future holder of any Senior Debt shall be prejudiced in
the right to enforce subordination of Subordinated Debt by any act or failure to
act on the part of the Company. Except to the extent provided herein that
Subordinated Debt may not become due and payable or paid, nothing contained
herein shall impair, as between the Company and the holder of this Subordinated
Debt, the obligation of the Company to pay to the holder hereof the principal
hereof and interest hereon as and when the same shall become due and
2
payable in accordance with the terms hereof, or prevent the holder of any
Subordinated Debt from exercising all rights, powers and remedies otherwise
permitted by applicable law or hereunder upon a default or Event of Default
hereunder, all subject to the rights of the holders of the Senior Debt to
receive cash, securities or other property otherwise payable or deliverable to
the holders of Subordinated Debt.
g. Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash equal to the amount of such Senior Debt
then outstanding. Upon the payment in full of all Senior Debt, the holders of
Subordinated Debt shall be subrogated to all rights of any holders of Senior
Debt to receive any further payments or distributions applicable to the Senior
Debt until the Subordinated Debt shall have been paid in full, and such payments
or distributions received by the holders of the Subordinated Debt by reason of
such subrogation, of cash, securities or other property which otherwise would be
paid or distributed to the holders of Senior Debt, shall, as between the Company
and its creditors other than the holders of Senior Debt, on the one hand, and
the holders of Subordinated Debt, on the other hand, be deemed to be a payment
by the Company on account of Senior Debt and not on account of Subordinated
Debt.
h. The holder of Subordinated Debt will take such action (including,
without limitation, the delivery of this instrument to an agent for the holders
of Senior Debt or consent to the filing of a financing statement with respect
thereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Debt at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
i. The holder of Subordinated Debt understands and acknowledges by its
acceptance hereof that the holders of the Senior Debt have extended credit to
the Company in reliance upon the subordination of Subordinated Debt to Senior
Debt to the extent set forth herein.
3
EXHIBIT G
ADDRESSES OF THE AGENT AND THE BANKS
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Vice President
Payment Office:
---------------
Account #1233814440
ABA# 000-000-000 at:
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Ref: The Genlyte Group
Attention: Agency Management Services #0000
XXXX XX XXXXXXX XXXXXXXX
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Copy To:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Vice President
THE BANK OF NEW YORK
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Assistant Treasurer
BANK OF SCOTLAND
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
THE BANK OF TOKYO TRUST COMPANY
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Vice President
CHEMICAL BANK
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Vice President
FIRST FIDELITY BANK, N.A.
000 Xxxxx Xxxxxx
X000000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Vice President
NBD BANK
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx X. Xxxx
Vice President
NATWEST BANK N.A.
000 Xxxxxxxxxx Xxxx, 0xx Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X.X. Xxxxxx
Vice President
SUN TRUST BANK, ATLANTA
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Vice President
Copy to:
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
0
XXXXXX XXXXXX BANK
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxx
3
EXHIBIT H
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Pledge Agreement"),
dated as of November 15, 1995, between THE GENLYTE GROUP INCORPORATED, a
Delaware corporation (the "Pledgor"), and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION as Agent and Collateral Agent and as an assignee of Bank of
America, Illinois (formerly, Continental Bank N.A.) (in such capacities the
"Agent" or "Collateral Agent") for the benefit of (a) the banks (collectively,
the "Banks") named in the Amended and Restated Credit Agreement, dated as of
November 15, 1995 (together with all amendments, amendments and restatements,
supplements and modifications, if any, from time to time made thereto, the
"Credit Agreement") among the Pledgor, the Banks, and Bank of America Illinois
as a Bank and a Letter of Credit Issuer ("BAI" in its individual capacity); (b)
Bank of America Illinois (the "Issuer") in its capacity as issuer pursuant to
the Letter of Credit Agreement (together with all amendments, amendments and
restatements, supplements and modifications, if any, from time to time made
thereto, the "Letter of Credit Agreement"), dated as of November 15, 1995,
between the Pledgor and the Issuer, of the letters of credit issued from time to
time for the account of the Pledgor (such letters of credit, including those
outstanding on the date hereof, herein collectively referred to as the "BAI
Letters of Credit") and (c) BAI ("LC Issuer") in its capacity as issuer of the
various standby letters of credit listed on Attachment 2 hereto (such letters of
credit, together with all amendments and substitutions therefor, the "IRB
Letters of Credit"),
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Banks have, among other
things, extended Commitments to make Credit Extensions to the Pledgor; and
WHEREAS, BAI has issued, and from time to time shall issue, the BAI
Letters of Credit for the account of the Pledgor pursuant to the Letter of
Credit Agreement and the LC Issuer has issued the IRB letters of Credit; and
WHEREAS, the Pledgor and BAI entered into a Pledge Agreement dated as
of July 17, 1991 (the "Existing Pledge Agreement"); and
WHEREAS, the Pledgor and the Collateral Agent (as assignee of BAI)
desire to amend and restate the Existing Pledge Agreement; and
WHEREAS, as a condition precedent to the continued making of Credit
Extensions under the Credit Agreement, and to continue as security for the
Pledgor's obligations under the BAI
Letters of Credit and the IRB Letters of Credit, the Pledgor is required to
execute and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Banks to make Credit
Extensions and BAI to issue the BAI Letters of Credit from time to time, the
Pledgor agrees, for the benefit of each of the Secured Parties, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Agent" is defined in the preamble.
"BAI" is defined in the preamble.
"BAI Letters of Credit" is defined in the preamble.
"Banks" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Collateral Agent" is defined in the preamble.
"Credit Agreement" is defined in the preamble.
"Distributions" means all cash dividends and distributions, all stock
dividends, liquidating dividends, shares of stock resulting from (or in
connection with the exercise of) stock splits, reclassifications, warrants,
options, non-cash dividends, mergers, consolidations, and all other
distributions (whether similar or dissimilar to the foregoing) on or with
respect to any Pledged Shares or other shares of capital stock constituting
Collateral.
"Event of Default" means each of the events of default set forth in
paragraph 7 of the Credit Agreement.
"Federal Securities Laws" is defined in Section 6.2.
-2-
"IRB Event of Default" means each of the events of default under the
IRB LC Documents and the IRB Letters of Credit.
"IRB LC Documents" means each of the instruments pursuant to which the
IRB Letters of Credit were issued or pursuant to which the Pledgor's obligation
to reimburse BAI in respect thereof arises.
"IRB Letter of Credit" is defined in the preamble.
"LC Issuer" is defined in the preamble.
"Issuer" is defined in the preamble.
"Letter of Credit Agreement" is defined in the preamble.
"Letters of Credit Event of Default" means each of the events of
default under the Letter of Credit Agreement and the BAI Letters of Credit.
"Pledge Agreement" is defined in the preamble.
"Pledged Share Issuer" means each Person identified in Item A of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock identified in Item A
of Attachment 1 hereto.
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, any Bank, the Agent,
the Collateral Agent, BAI as Issuer or BAI as LC Issuer, together with each of
their respective successors, transferees and assigns.
"Securities Act" is defined in Section 6.2.
"Security Event of Default" means any Event of Default or Letter of
Credit Event of Default or IRB Event of Default.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
New York.
SECTION 1.2. Other Definitions. Unless otherwise defined herein, all
terms used in this Agreement shall have the meaning as in the Credit Agreement.
-3-
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Pledge Agreement, including its preamble and recitals, with
such meanings.
ARTICLE II.
PLEDGE
SECTION 2.1. Grant of Security Interest. To secure the Secured
Obligations, the Pledgor hereby pledges, hypothecates, assigns, charges,
mortgages, delivers and transfers to the Collateral Agent, for its benefit and
the ratable benefit of each of the other Secured Parties, and hereby grants to
the Collateral Agent, for its benefit and the ratable benefit of each of the
other Secured Parties, a continuing security interest in, all of the following
property (the "Collateral"):
(a) all issued and outstanding shares of capital stock
identified in Item A of Attachment 1 hereto;
(b) all other shares of capital stock of any such Pledged
Share Issuer issued and outstanding from time to time; provided,
however, that for any such Pledged Share Issuer which is organized in a
jurisdiction outside the United States of America, to the extent, and
only to the extent, the shares of any class of capital stock of such
Pledged Share Issuer included in the Collateral shall exceed 65% of all
outstanding shares of such class of capital stock of such Pledged Share
Issuer, such excess shares shall automatically be released from the
security interest created hereby;
(c) all other securities of any such Pledged Share Issuer that
may be converted, exchanged for or otherwise entitle the holder thereof
to shares of capital stock of such Pledged Share Issuer; provided,
however, that for any such Pledged Share Issuer which is organized in a
jurisdiction outside the United States of America, to the extent, and
only to the extent, the shares of any class of such securities of a
Pledged Share Issuer included in the Collateral shall exceed 65% of all
outstanding shares of such class of securities of such Pledged Share
Issuer, such excess shares shall automatically be released from the
security interest created hereby;
(d) all Distributions and other payments and rights with
respect to the foregoing;
and
(e) all profits, returns, income and proceeds of any of the
foregoing;
provided, however, that, without limiting any rights or interests of any Secured
Party under the Security Agreement, so long as no Security Event of Default has
occurred and is continuing, the
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Collateral described in clauses (d) and (e) above shall automatically be
released from the security interest created hereby upon the occurrence of the
event or transaction giving rise to any such Collateral.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures
the payment in full of (a) all Obligations now or hereafter existing (whether
actual or contingent) under the Credit Agreement, the Notes, the Letters of
Credit and each other Loan Document to which the Pledgor is or may become a
party, (b) all obligations of the Pledgor now or hereafter existing (whether
actual or contingent) under the Letter of Credit Agreement and the BAI Letters
of Credit and (c) all obligations (to the extent unsatisfied after application
of all other collateral (other than pursuant to the Loan Documents) securing the
IRB Letters of Credit) of the Pledgor now or hereafter existing (whether actual
or contingent) in respect of the issuance for the account of the Pledgor of the
IRB Letters of Credit or arising under the IRB LC Documents, in each case
whether for reimbursement obligations, principal, interest, costs, fees,
expenses or otherwise (all of the foregoing herein collectively referred to as
the "Secured Obligations").
SECTION 2.3. Delivery of Pledged Property. All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares (but excluding any Collateral of the type described in clauses (c) or (d)
of Section 2.1 permitted to be paid to the Pledgor hereunder or under the Credit
Agreement), shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto, shall be in suitable form for transfer by delivery, and
shall be accompanied by all necessary stock powers or instruments of transfer or
assignment, duly executed in blank.
SECTION 2.4. Distributions on Pledged Shares. In the event that any
Distribution is to be paid on any Pledged Share at a time when (i) no incipient
default of the nature referred to in subdivision 7(A)(6) of the Credit Agreement
or the equivalent thereof under the Letter of Credit Agreement, any of the BAI
Letters of Credit, in respect of the IRB LC Documents or any of the IRB Letters
of Credit has occurred and is continuing, and no (ii) Security Event of Default
has occurred and is continuing, such Distribution may be paid directly to the
Pledgor. If any Security Event of Default has occurred and is continuing, then
any such Distribution shall be paid directly to the Collateral Agent.
SECTION 2.5. Continuing Security Interest. This Pledge Agreement shall
create a continuing security interest in the Collateral and shall
(a) remain in full force and effect until payment in full of
all the Secured Obligations and the termination of all Commitments and
the passage of 30 days after the expiration or termination of the
Letters of Credit,
(b) be binding upon the Pledgor and its successors,
transferees and assigns, and
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(c) inure, together with the rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent and
each other Secured Party.
Without limiting the foregoing clause (c), any Bank may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Bank under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of subparagraph 11(H) and paragraph 8 of the Credit Agreement. Upon the payment
in full of all the Secured Obligations and the termination of all Commitments
and the passage of 30 days after the expiration or termination of the Letters of
Credit, the security interest granted herein shall terminate and all rights to
the Collateral shall revert to the Pledgor. Upon any such termination, the
Collateral Agent will, at the Pledgor's sole expense, deliver to the Pledgor,
without any representations, warranties or recourse of any kind whatsoever, all
certificates and instruments representing or evidencing all Pledged Shares,
together with all other Collateral held by the Collateral Agent hereunder, and
execute and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence such termination.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Warranties, etc. The Pledgor represents and warrants unto
each Secured Party as set forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of the Collateral free and clear of any lien, security
interest, option, charge or encumbrance, except any lien or security interest
granted pursuant hereto in favor of the Collateral Agent.
SECTION 3.1.2. Valid Security Interest. The delivery of such Collateral
to the Collateral Agent is effective to create a valid, perfected, first
priority security interest in such Collateral and all proceeds thereof, securing
the Secured Obligations. No filing or other action will be necessary to perfect
or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitutes for each Pledged
Share Issuer, if any, organized in the United States (or any State or
subdivision thereof), 100% and for each Pledged Share Issuer organized outside
the United States, 65%, of all issued and outstanding shares of each class of
capital stock of each such Pledged Share Issuer (determined on a fully diluted
basis without
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regard to the timing or price of any conversion, exercise, option or similar
rights in respect of such capital stock).
SECTION 3.1.4. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority, regulatory body or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant
to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by the Pledgor, or
(b) for the exercise by the Collateral Agent of the voting or
other rights provided for in this Pledge Agreement, or, except (without
otherwise limiting the terms and provisions hereof) for such notices of
sale of Collateral as may be required by law and except with respect to
any Pledged Shares, as may be required in connection with a disposition
of such Pledged Shares by laws affecting the offering and sale of
securities generally, the remedies in respect of the Collateral
pursuant to this Pledge Agreement.
SECTION 3.1.5. Compliance with Laws. The Pledgor is in compliance with
the requirements of all applicable laws, rules, regulations and orders of every
governmental authority, the non-compliance with which might materially adversely
affect the business, properties, assets, operations, condition (financial or
otherwise) or prospects of the Pledgor or the value of the Collateral or the
worth of the Collateral as collateral security.
ARTICLE IV.
COVENANTS
SECTION 4.1. Protect Collateral; Further Assurances, etc. The Pledgor
will not sell, assign, transfer, pledge or encumber in any other manner (i) any
Pledged Shares (except in favor of the Collateral Agent hereunder) or (ii) any
other Collateral (expect as otherwise permitted under the Credit Agreement). The
Pledgor will warrant and defend the right and title herein granted unto the
Collateral Agent in and to the Collateral (and all right, title, and interest
represented by the Collateral) against the claims and demands of all Persons
whomsoever. The Pledgor agrees that at any time, and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments, and take all further action, that may be necessary or
desirable, or that the Collateral Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral.
-7-
SECTION 4.2. Stock Powers, etc. The Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral) delivered
by the Pledgor pursuant to this Pledge Agreement will be accompanied by duly
executed undated blank stock powers, or other equivalent instruments of transfer
acceptable to the Collateral Agent. The Pledgor will, from time to time upon the
request of the Collateral Agent, promptly deliver to the Collateral Agent such
stock powers, instruments, and similar documents, satisfactory in form and
substance to the Collateral Agent, with respect to the Collateral as the
Collateral Agent may reasonably request and will, from time to time upon the
request of the Collateral Agent after the occurrence and during the continuance
of any Security Event of Default, promptly transfer any Pledged Shares or other
shares of common stock constituting Collateral into the name of any nominee
designated by the Collateral Agent.
SECTION 4.3. Continuous Pledge. Subject to Section 2.4, the Pledgor
will, at all times, keep pledged to the Collateral Agent pursuant hereto all
Pledged Shares and all other shares of capital stock constituting Collateral,
all Distributions with respect thereto and all other Collateral and other
securities, instruments, proceeds and rights from time to time received by or
distributable to the Pledgor in respect of any Collateral.
SECTION 4.4. Voting Rights; Dividends, etc. The Pledgor agrees as
follows:
(a) Promptly after (x) any incipient default of the nature
referred to in subdivision (7)(A)(6) of the Credit Agreement or the
equivalent thereof under the Letter of Credit Agreement, any of the BAI
Letters of Credit, the IRB LC Documents or any of the IRB Letters of
Credit shall have occurred and be continuing or (y) any Security Event
of Default shall have occurred and be continuing, the Pledgor shall,
without any request therefor by the Collateral Agent, deliver (properly
endorsed where required hereby or requested by the Collateral Agent) to
the Collateral Agent all Distributions, all interest, all principal, all
other cash payments and all proceeds of the Collateral, all of which
shall be held by the Collateral Agent as additional Collateral for use
in accordance with Section 6.3; and
(b) After any Security Event of Default shall have occurred and
be continuing and the Collateral Agent has notified the Pledgor of the
Collateral Agent's intention to exercise its voting power under this
Section 4.4(b):
(i) the Collateral Agent may exercise (to the exclusion of
the Pledgor) the voting power and all other incidental rights of
ownership with respect to any Pledged Shares or other shares of
capital stock constituting Collateral and the Pledgor hereby
grants the Collateral Agent an irrevocable proxy, exercisable
under such circumstances, to vote the Pledged Shares and such
other Collateral; and
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(ii) the Pledgor shall promptly deliver to the Collateral
Agent such additional proxies and other documents as may be
necessary to allow the Collateral Agent to exercise such voting
power.
All Distributions, interest, principal, cash payments, and proceeds which may at
any time and from time to time be held by the Pledgor but which the Pledgor is
then obligated to deliver to the Collateral Agent, shall, until delivery to the
Collateral Agent, be held by the Pledgor separate and apart from its other
property in trust for the Collateral Agent. The Collateral Agent agrees that
unless any Security Event of Default shall have occurred and be continuing and
the Collateral Agent shall have given the notice referred to in Section 4.4(b),
the Pledgor shall have the exclusive voting power with respect to any shares of
capital stock (including any of the Pledged Shares) constituting Collateral and
the Collateral Agent shall, upon the written request of the Pledgor, promptly
deliver such proxies and other documents, if any, as shall be reasonably
requested by the Pledgor which are necessary to allow the Pledgor to exercise
voting power with respect to any such share of capital stock (including any of
the Pledged Shares) constituting Collateral; provided, however, that no vote
shall be cast, or consent, waiver or ratification given, or action taken by the
Pledgor that would impair any Collateral or be inconsistent with or violate any
provision of the Credit Agreement, any other Loan Document (including this
Pledge Agreement) or the Letter of Credit Agreement.
ARTICLE V.
THE COLLATERAL AGENT
SECTION 5.1. Collateral Agent Appointed Attorney-in-Fact. The Pledgor
hereby irrevocably appoints the Collateral Agent the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of the
Pledgor or otherwise, from time to time in the Collateral Agent's discretion, to
take any action and to execute any instrument which the Collateral Agent may
deem necessary or advisable to accomplish the purposes of this Pledge Agreement,
including without limitation:
(a) after the occurrence and continuance of any Security Event of
Default, to ask, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral;
(b) after the occurrence and during the continuance of any
Security Event of Default, to receive, endorse and collect any drafts or
other instruments, documents and chattel paper, in connection with
clause (a) above; and
(c) after the occurrence and during the continuance of any
Security Event of Default, to file any claims or take any action or
institute any proceedings which the Collateral Agent may deem necessary
or desirable for the collection of any of the
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Collateral or otherwise to enforce the rights of the Collateral Agent
with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Collateral Agent May Perform. If the Pledgor fails to
perform any agreement contained herein, the Collateral Agent may itself perform,
or cause performance of, such agreement, and the expenses of the Collateral
Agent incurred in connection therewith shall be payable by the Pledgor pursuant
to Section 6.4.
SECTION 5.3. Collateral Agent Has No Duty. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest (on behalf of the
Secured Parties) in the Collateral and shall not impose any duty on it to
exercise any such powers. Except for reasonable care of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to any Collateral or responsibility for
(i) ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
the Collateral Agent has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral.
SECTION 5.4. Reasonable Care. The Collateral Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Security Event of Default, but failure of the
Collateral Agent to comply with any such request at any time shall not in itself
be deemed a failure to exercise reasonable care.
ARTICLE VI.
REMEDIES
SECTION 6.1. Certain Remedies. If any Security Event of Default shall
have occurred and be continuing:
(a) The Collateral Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may, without notice except
as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale,
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at any of the Collateral Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the
Collateral Agent may deem commercially reasonable. The Pledgor agrees
that, to the extent notice of sale shall be required by law, at least
ten days' prior notice to the Pledgor of the time and place of any
public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Collateral Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Collateral Agent may adjourn any public or
private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Except as provided for in the Credit Agreement all cash
proceeds received by the Collateral Agent in respect of any sale of,
collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Collateral Agent, be held by
the Collateral Agent as collateral for, and then or at any time
thereafter applied (after payment of any amounts payable to the
Collateral Agent pursuant to Section 6.4) in whole or in part by the
Collateral Agent as follows:
i) FIRST against, all or any part of the Secured Obligations
(excluding all obligations now or hereafter existing which
arise under or in respect of the IRB LC Documents or the IRB
Letters of Credit) pro rata (based upon the aggregate
principal amount outstanding under the Credit Agreement, on
the one hand, and the aggregate amount outstanding under the
BAI Letters of Credit on the other hand) until satisfied in
full; and
ii) SECOND against, all or any Secured Obligations which arise
under or in respect of the IRB LC Documents or the IRB Letters
of Credit.
Any surplus of such cash or cash proceeds held by the Collateral Agent
and remaining after payment in full of all the Secured Obligations, and
the termination of all the commitments under all of the Credit
Agreement and the Letter of Credit Agreement and the passage of 30 days
after the expiration or termination of the Letters of Credit, shall be
paid over to the Pledgor or to whomsoever may be lawfully entitled to
receive such surplus.
SECTION 6.2. Securities Laws. In view of the position of the Pledgor in
relation to the Pledged Shares, or because of other present or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Shares permitted hereunder. The Pledgor understands
that compliance with the Federal
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Securities Laws might very strictly limit the course of conduct of the
Collateral Agent if the Collateral Agent were to attempt to dispose of all or
any part of the Pledged Shares, and might also limit the extent to which or the
manner in which any subsequent transferee of any Pledged Shares could dispose of
the same. Similarly, there may be other legal restrictions or limitations
affecting the Collateral Agent in any attempt to dispose of all or part of the
Pledged Shares under applicable Blue Sky or other state securities laws or
similar laws analogous in purpose or effect. Under applicable law, in the
absence of an agreement to the contrary, the Collateral Agent might be held to
have certain general duties and obligations to the Pledgor, as pledgor, to make
some effort toward obtaining a fair price even though the Secured Obligations
may be discharged or reduced by the proceeds of a sale at a lesser price. The
Pledgor clearly understands that the Collateral Agent is not to have any such
general duty or obligation to the Pledgor, and the Pledgor will not attempt to
hold the Collateral Agent responsible for selling all or any part of the Pledged
Shares at an inadequate price even if the Collateral Agent shall accept the
first offer received or does not approach more than one possible purchaser.
Without limiting the generality of the foregoing, the provisions of this Section
would apply if, for example, the Collateral Agent were to place all or any part
of the Pledged Shares for private placement by an investment banking firm, or if
such investment banking firm purchased all or any part of the Pledged Shares for
its own account, or if the Collateral Agent placed all or any part of the
Pledged Shares privately with a purchaser or purchasers. The provisions of this
Section 6.2 will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices may substantially exceed the
price at which the Collateral Agent sells. Without limiting the generality of
the foregoing, the Collateral Agent, at a location designated by the Collateral
Agent, which is reasonably convenient to both parties and without notice except
as specified below, may sell the Pledged Shares or any part thereof at public or
private sale, at any of the Collateral Agent's offices or elsewhere, for cash,
on credit or for future delivery, and upon such other terms as the Collateral
Agent may deem commercially reasonable. The Pledgor agrees that, to the extent
notice of sale shall be required by law, at least ten days' prior notice to the
Pledgor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Pledged Shares
regardless of notice of sale having been given. The Collateral Agent may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
SECTION 6.3. Compliance with Restrictions. The Pledgor agrees that in
any sale of any of the Collateral whenever any Security Event of Default shall
have occurred and be continuing, the Collateral Agent is hereby authorized to
comply with any limitation or restriction in connection with such sale as it may
be advised by counsel is necessary in order to avoid any violation of applicable
law (including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to
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obtain any required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and the Pledgor further agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall the Collateral Agent be
liable nor accountable to the Pledgor for any discount allowed by the reason of
the fact that such Collateral is sold in compliance with any such limitation or
restriction.
SECTION 6.4. Indemnity and Expenses.
(a) The Pledgor hereby indemnifies and holds harmless the Collateral
Agent and each other Secured Party from and against any and all claims, losses,
and liabilities arising out of or resulting from this Pledge Agreement
(including, without limitation, enforcement of this Pledge Agreement), except
claims, losses or liabilities resulting from the Collateral Agent's gross
negligence or wilful misconduct.
(b) The Pledgor will upon demand pay to the Collateral Agent the amount
of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the Collateral
Agent may incur in connection with (i) the administration of this Pledge
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent or the
Secured Parties hereunder, or (iv) the failure by the Pledgor to perform or
observe any of the provisions hereof.
ARTICLE VII.
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments, Voting etc. No amendment to or waiver of any
provision of this Pledge Agreement nor consent to any departure by the Pledgor
herefrom shall in any event be effective unless the same shall be in writing and
signed by the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it is given. Any decisions to be made or directions to be given by the Secured
Parties as a group shall be made as set forth in the Credit Agreement, but shall
not in any event include BAI in its capacity as LC Issuer.
SECTION 7.3. Protection of Collateral. The Collateral Agent may from
time to time, at its option, perform any act which the Pledgor agrees hereunder
to perform and which the Pledgor shall fail to perform after being requested in
writing so to perform (it being understood
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that no such request need be given after the occurrence and during the
continuance of any Event of Default or Letters of Credit Event of Default) and
the Collateral Agent may from time to time take any other action which the
Collateral Agent reasonably deems necessary for the maintenance, preservation or
protection of any of the Collateral or of its security interest therein.
SECTION 7.4. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and shall be mailed or telecopied or delivered to the parties
hereto at the address set forth below their signature hereto, or at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All such notices
and other communications shall, if mailed and properly addressed with postage
prepaid, return receipt requested, or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice transmitted by
telecopier shall be deemed given when transmitted (upon receipt of electronic
confirmation of transmission).
SECTION 7.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION 7.7. Governing Law, Entire Agreement, etc. THIS PLEDGE
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION 7.8. Waiver of Jury Trial. THE SECURED PARTIES AND THE PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
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WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE PLEDGOR. THE PLEDGOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY AND THE LETTER OF CREDIT AGREEMENT) AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT
AGREEMENT, EACH SUCH OTHER LOAN DOCUMENT AND THE LETTER OF CREDIT AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
THE GENLYTE GROUP INCORPORATED
By: __________________________
Title:________________________
Address: 000 Xxxxxxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telecopy No.: 000-000-0000
Attention:__________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Collateral
Agent
By: __________________________
Title:________________________
Address:
______________________
______________________
______________________
Telecopy No.:_________________
Attention:____________________
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Attachment 1
------------
Item A. Pledged Shares
Pledged Share Issuer Common Stock
Attachment 2
------------
IRB Letters of Credit
EXHIBIT I
SECURITY AGREEMENT
------------------
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Security
Agreement"), dated as of November 15, 1995, between THE GENLYTE GROUP
INCORPORATED, a Delaware corporation (the "Grantor"), and BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION as Agent and Collateral Agent and as an
assignee of Bank of America Illinois (formerly, Continental Bank N.A.) (in such
capacities the "Agent" or "Collateral Agent") for the benefit of (a) the banks
(collectively, the "Banks") named in the Amended and Restated Credit Agreement,
dated as of November 15, 1995 (together with all amendments, amendments and
restatements, supplements and modifications, if any, from time to time made
thereto, the "Credit Agreement") among the Grantor, the Banks, and Bank of
America Illinois as a Bank and a Letter of Credit Issuer ("BAI" in its
individual capacity); (b) Bank of America Illinois (the "Issuer") in its
capacity as issuer pursuant to the Letter of Credit Agreement (together with all
amendments, amendments and restatements, supplements and modifications, if any,
from time to time made thereto, the Letter of Credit Agreement"), dated as of
November 15, 1995, between the Grantor and the Issuer, of the letters of credit
issued from time to time for the account of the Grantor (such letters of credit,
including those outstanding on the date hereof, herein collectively referred to
as the "BAI Letters of Credit") and (c) BAI ("LC Issuer") in its capacity as
issuer of the various standby letters of credit listed on Attachment 2 hereto
(such letters of credit, together with all amendments and substitutions
therefor, the "IRB Letters of Credit"),
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Banks have, among other
things, extended Commitments to make Credit Extensions to the Grantor; and
WHEREAS, Issuer has issued and, from time to time shall issue, the BAI
Letters of Credit for the account of the Grantor pursuant to the Letter of
Credit Agreement and the LC Issuer has issued the IRB Letters of Credit; and
WHEREAS, the Grantor and BAI entered into a Security Agreement dated as
of July 17, 1991 (the "Existing Security Agreement"); and
WHEREAS, the Grantor and the Collateral Agent (as assignee of BAI)
desire to amend and restate the Existing Security Agreement; and
WHEREAS, as a condition precedent to the continued making of the Credit
Extensions under the Credit Agreement, and in order to continue to secure the
Grantor's
obligations under the BAI Letters of Credit and the IRB Letters of Credit, the
Grantor is required to execute and deliver this Security Agreement; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Banks
to make Credit Extensions and BAI to issue the BAI Letters of Credit from time
to time, the Grantor agrees, for the benefit of each of the Secured Parties, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Security Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Agent" is defined in the preamble.
"Banks" is defined in the preamble.
"BAI" is defined in the preamble.
"BAI Letters of Credit" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Collateral Agent" is defined in the preamble.
"Credit Agreement" is defined in the preamble.
"Equipment" is defined in clause (a) of Section 2.1.
"GAAP" means those generally accepted accounting principles, as in
effect on the date hereof.
"Grantor" is defined in the preamble.
"Inventory" is defined in clause (b) of Section 2.1.
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"IRB Event of Default" means each of the events of default under the
IRB LC Documents and the IRB Letters of Credit.
"IRB LC Documents" means each of the instruments pursuant to which the
IRB Letters of Credit were issued or pursuant to which the Grantor's obligation
to reimburse BAI in respect thereof arises.
"IRB Letter of Credit" is defined in the preamble.
"Issuer" is defined in the preamble.
"LC Issuer" is defined in the preamble.
"Letter of Credit Agreement" is defined in the preamble.
"Letter of Credit Event of Default" means each of the events of default
under the Letter of Credit Agreement and the BAI Letters of Credit.
"Receivables" is defined in clause (c) of Section 2.1.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, any Bank, the Agent,
the Collateral Agent, BAI as Issuer or BAI as LC Issuer, together with each of
their respective successors, transferees and assigns.
"Security Agreement" is defined in the preamble.
"Security Event of Default" means any Event of Default or Letter of
Credit Event of Default or IRB Event of Default.
"U.C.C." means the Uniform Commercial Code, as in effect in the State
of New York.
SECTION 1.2. Other Definitions. Unless otherwise defined herein, all
terms used in this Agreement shall have the meaning as in the Credit Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Security Agreement, including its preamble and recitals, with
such meanings.
ARTICLE II
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SECURITY INTEREST
SECTION 2.1. Grant of Security. To secure the Secured Obligations the
Grantor hereby assigns and pledges to the Collateral Agent for the ratable
benefit of each of the Secured Parties, and hereby grants to the Collateral
Agent for the ratable benefit of each of the Secured Parties, a security
interest in all of the following, whether now or hereafter existing or acquired
(the "Collateral"):
(a) all equipment in all of its forms of the Grantor, wherever located
in the United States, and all parts thereof and all accessions, additions,
attachments, improvements, substitutions and replacements thereto and therefor
(any and all of the foregoing being the "Equipment");
(b) all inventory in all of its forms of the Grantor, wherever located
in the United States, including
(i) all raw materials and work in process therefor, finished
goods thereof, and materials used or consumed in the manufacture or
production thereof,
(ii) to the extent of the Grantor's interest therein, all
goods of the foregoing type in which the Grantor has an interest in
mass or a joint or other interest or right of any kind (including goods
in which the Grantor has an interest or right as consignee), and
(iii) all inventory which is returned to or repossessed by the
Grantor,
and all accessions thereto, products thereof and documents therefor (any and all
such inventory, materials, goods, accessions, products and documents being the
"Inventory");
(c) all accounts of the Grantor, and all chattel paper, instruments and
general intangibles of the Grantor in the nature of accounts, arising out of the
sale or lease of goods or the rendering of services, and all rights of the
Grantor now or hereafter existing in and to all security agreements, guaranties,
leases and other contracts securing or otherwise relating to any such accounts,
chattel paper, instruments and general intangibles (any and all such accounts,
chattel paper, instruments, general intangibles, security agreements,
guaranties, leases and other contracts being collectively referred to as the
Receivables");
(d) all books, records, writings, data bases and other information
relating to any of the foregoing in this Section 2.1;
(e) all products, offspring, rents, issues, profits, returns, income
and proceeds of and from any and all of the foregoing Collateral, including
proceeds which constitute property of the types described in clauses (a), (b),
(c) and (d) and, to the extent not otherwise included,
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all payments under insurance (whether or not the Agent is the loss payee
thereof), indemnity, warranty or guaranty payable by reason of loss or damage to
or otherwise with respect to any of the foregoing Collateral, including all
rights, claims and benefits of the Grantor against any Person arising out of,
relating to or in connection with Inventory or Equipment purchased by the
Grantor, including, without limitation, any such rights, claims or benefits
against any Person storing or transporting such Inventory or Equipment (any and
all of the foregoing being collectively referred to as "Proceeds"), but
excluding any property (other than any deposit account (as defined in the
U.C.C.) into which Proceeds are deposited) which (i) is not of a type described
in clauses (a), (b), (c) or (d) above or of a type described in subdivision (1),
(2), (3), (4), (5) or (6) of subparagraph 6(E) of the Credit Agreement and (ii)
has been purchased by the Grantor with cash proceeds (as defined in Section
9-306 of U.C.C.), provided such purchase is not prohibited by the Credit
Agreement.
SECTION 2.2. Security for Obligations. This Security Agreement secures
the payment of (a) all Obligations now or hereafter existing (whether actual or
contingent) under the Credit Agreement, the Notes and each other Loan Document
to which the Grantor is or may become a party, (b) all obligations of the
Grantor now or hereafter existing (whether actual or contingent) under the
Letter of Credit Agreement and the Letters of Credit and (c) all obligations (to
the extent unsatisfied after application of all other collateral (other than
pursuant to the Loan Documents) securing the IRB Letters of Credit) of the
Grantor now or hereafter existing (whether actual or contingent) in respect of
the issuance for the account of the Grantor of the IRB Letters of Credit or
arising under the IRB LC Documents, in each case whether for reimbursement
obligations, principal, interest, costs, fees, expenses or otherwise (all of the
foregoing herein collectively referred to as the "Secured Obligations").
SECTION 2.3. Continuing Security Interest. This Security Agreement
shall create a continuing security interest in the Collateral and shall
(a) remain in full force and effect until payment in full of all the
Secured Obligations and the termination of all commitments under both the Credit
Agreement and the Letter of Credit Agreement and the passage of 30 days after
the expiration or termination of the Letters of Credit,
(b) be binding upon the Grantor, its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent and each other Secured
Party.
Without limiting the generality of the foregoing clause (c), any Bank may assign
or otherwise transfer (in whole or in part) any Note or Loan held by it to any
other Person or entity, and such other Person or entity shall thereupon become
vested with all the rights and benefits in respect thereof granted to such Bank
under any Loan Document (including this Security Agreement) or otherwise,
subject, however, to any contrary provisions in such assignment or
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transfer, and to the provisions of subparagraph 11(H) and paragraph 8 of the
Credit Agreement. Upon the payment in full of all the Secured Obligations and
the termination of all commitments under both the Credit Agreement and the
Letter of Credit Agreement, and the passage of 30 days after the expiration or
termination of the Letters of Credit, the security interest granted herein shall
terminate and all rights to the Collateral shall revert to the Grantor. Upon any
such termination, the Collateral Agent will, at the Grantor's sole expense,
execute and deliver to the Grantor such documents as the Grantor shall
reasonably request to evidence such termination.
SECTION 2.4. Grantor Remains Liable. Anything herein to the contrary
notwithstanding
(a) the Grantor shall remain liable under the contracts and agreements
included in the Collateral to the extent set forth therein, and shall perform
all of its duties and obligations under such contracts and agreements to the
same extent as if this Security Agreement had not been executed;
(b) the exercise by the Collateral Agent of any of its rights hereunder
shall not release the Grantor from any of its duties or obligations under any
such contracts or agreements included in the Collateral; and
(c) neither the Collateral Agent nor any other Secured Party shall have
any obligation or liability under any such contracts or agreements included in
the Collateral by reason of this Security Agreement, nor shall the Collateral
Agent or any other Secured Party be obligated to perform any of the obligations
or duties of the Grantor thereunder or to take any action to collect or enforce
any claim for payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Grantor represents and
warrants unto each Secured Party as set forth in this Article.
SECTION 3.1.1. Location of Collateral, etc. All of the Equipment and
Inventory of the Grantor are located at the places specified in Item A and Item
B, respectively, of Schedule I hereto. None of the Equipment or Inventory has,
within the four months preceding the date of this Security Agreement, been
located at any place other than one of the states listed in Item A and Item B,
respectively, of such Schedule I. The chief executive office of the Grantor is
located at 000 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000. The offices where the
Grantor keeps all of its records concerning the Receivables, together with all
originals of all chattel paper which evidence Receivables, are located at the
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aforementioned address or at one of the other addresses specified in Item C of
Schedule I hereto. Except as disclosed in Item D of Schedule I hereto, the
Grantor has no trade names, has not been known by any legal name other than the
one set forth on the signature page hereto and has not done (and is not doing)
business under any other name, nor has the Grantor been the subject of any
merger or other corporate reorganization. With the exception of the Seattle
Lighting Fixture Co. Note referred to in Section 3.1.4 of this Agreement, none
of the Receivables is evidenced by a promissory note or other instrument.
SECTION 3.1.2. Ownership, No Liens, etc. The Grantor is the legal and
beneficial owner of the Collateral free and clear of any lien, security
interest, charge or encumbrance except for the security interest created by this
Security Agreement and except as specified in Item E of Schedule I hereto. No
effective financing statement or other instrument similar in effect covering all
or any part of the Collateral is on file in any recording office, except such as
may have been filed in favor of the Collateral Agent relating to this Security
Agreement and except as specified in Item E of Schedule I hereto.
SECTION 3.1.3. Possession and Control. Except as specified in Item F of
Schedule I hereto, the Grantor has exclusive possession and control of the
Equipment and Inventory.
SECTION 3.1.4. Negotiable Documents, Instruments and Chattel Paper. The
Grantor has, contemporaneously herewith, delivered to the Collateral Agent
possession of all originals of all instruments (other than checks) and chattel
paper, if any, constituting Collateral which are currently owned or held by the
Grantor (duly endorsed in blank, if so requested by the Collateral Agent);
provided, however, that Grantor has maintained possession of, on behalf of the
Secured Party: (i) notes from the Borrower's employees to the Borrower which in
the aggregate do not exceed $250,000, inclusive of all outstanding principal and
interest, (ii) guarantees issued for the account of the Borrower's customers for
the benefit of the Borrower and (iii) a note, payable over a two year period, in
the initial principal amount of $988,252.69 from Seattle Lighting Fixture Co.,
which was executed on August 3, 1995 to the Borrower.
SECTION 3.1.5. Validity, etc.
(a) All filings and other actions necessary or desirable to perfect the
security interests created pursuant to this Security Agreement have been duly
made or taken except for any such security interests in proceeds constituting
cash proceeds (as defined in Section 9-306 of the U.C.C.) which cease to be
identifiable pursuant to Section 9-306(3)(b) of the U.C.C.
(b) This Security Agreement creates a valid security interest in the
Collateral in which the Grantor has rights, and, to the extent perfected in
accordance with subparagraph (a) of this Section 3.1.5., such security interest
is prior to all other liens, security interests,
7
charges or encumbrances on such Collateral in existence on the date of this
Security Agreement except liens permitted by Section 6(B) of the Credit
Agreement.
SECTION 3.1.6. Authorization, Approval, etc. Except for the filings
described above in Section 3.1.5, no authorization, approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
is required either
(a) for the grant by the Grantor of the security interest granted
hereby or for the execution, delivery and performance of this Security Agreement
by the Grantor, or
(b) for the perfection of or the exercise by the Collateral Agent of
its rights and remedies hereunder.
SECTION 3.1.7. Compliance with Laws. The Grantor is in compliance with
the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of the Grantor or the value of the
Collateral or the worth of the Collateral as collateral security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Grantor covenants and agrees that,
so long as any portion of the Secured Obligations shall remain unpaid or any
commitment shall remain outstanding under either the Credit Agreement or the
Letter of Credit Agreement, the Grantor will, unless the Required Banks shall
otherwise consent in writing, perform the obligations set forth in this Section.
SECTION 4.1.1. As to Equipment and Inventory. The Grantor hereby agrees
that it shall
(a) keep all the Equipment and Inventory (other than Inventory sold in
the ordinary course of business) at the places therefor specified in Item A and
Item B, respectively, of Schedule I hereto or, upon 30 days' prior written
notice to the Collateral Agent, at such other places in a jurisdiction in the
United States where all representations and warranties set forth in Article III
(including Section 3.1.5) shall be true and correct, and all action required
pursuant to the first sentence of Section 4.1.5 shall have been taken with
respect to the Equipment and Inventory; provided, however, that this clause (a)
shall not restrict movement of Equipment or Inventory among the places specified
in such Items A and B or such other locations where Equipment or Inventory may
be located pursuant to the requirements of this
8
sentence, so long as all such representations and warranties shall be true and
correct and all such action shall have been taken; and
(b) cause the Equipment to be maintained and preserved in substantially
the same condition, repair and working order as when new, ordinary wear and tear
excepted, and in accordance with any manufacturer's manual; and, with respect to
any Equipment which has not, in the Grantor's reasonable discretion, become
obsolete, worn-out or no longer useful in the conduct of the Grantor's business,
forthwith, or in the case of any loss or damage to any such Equipment, as
quickly as practicable after the occurrence thereof, make or cause to be made
all repairs, replacements and other improvements in connection therewith which
are necessary or desirable to such end; and promptly furnish to the Collateral
Agent a statement respecting any loss or damage to any such Equipment.
SECTION 4.1.2. As to Receivables. The Grantor shall (i) keep its chief
executive office at 000 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 or, upon 30
days' prior written notice to the Collateral Agent, at such other place in a
jurisdiction where all representations and warranties set forth in Article III
(including Section 3.1.5) shall be true and correct, and all action required
pursuant to the first sentence of Section 4.1.5 shall have been taken with
respect to Receivables, (ii) keep the office where it keeps its records
concerning the Receivables, together with all originals of all chattel paper
which evidence Receivables, located at the aforementioned address, at one of the
other addresses specified in Item C of Schedule I hereto or, upon 30 days' prior
written notice to the Collateral Agent, at such places in a jurisdiction where
all representation and warranties set forth in Article III (including Section
3.1.5) shall be true and correct, and all action required pursuant to the first
sentence of Section 4.1.5 shall have been taken with respect to Receivables,
(iii) not change its name except upon 30 days' prior written notice to the
Collateral Agent, (iv) hold and preserve such records and chattel paper and (v)
provided that reasonable notice is given, permit representatives of the
Collateral Agent at any time during normal business hours to inspect and make
abstracts from such records and chattel paper.
SECTION 4.1.3. As to All Collateral.
(a) Until such time as the Collateral Agent shall notify the Grantor
(x) that a Security Event of Default has occurred and is continuing and (y) that
the Collateral Agent is revoking, in whole or in part, any of the Grantor's
following powers and authority, the Grantor (i) may in the ordinary course of
its business, at its own expense, sell, lease or furnish under the contracts of
service any of the Inventory normally held by the Grantor for such purpose, and
use and consume, in the ordinary course of its business, any raw materials, work
in process or materials normally held by the Grantor for such purpose, (ii) may
grant, in the ordinary course of business, to any party obligated on any of the
Collateral, any rebate, refund or allowance, and may accept, in connection
therewith, the return of goods, the sale or lease of which shall have given rise
to such Collateral. The Collateral Agent may, however, at any time after giving
such notice of a Security Event of Default and the revocation of such
9
powers and authority, or after the maturity of any of the Secured Obligations,
notify any parties obligated on any of the Collateral to make payment to the
Collateral Agent (including by deposit to any account or accounts designated by
the Collateral Agent) of any amounts due or to become due thereunder and enforce
collection of any of the Collateral by suit or otherwise and surrender, release
or exchange all or any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any indebtedness
thereunder or evidenced thereby. Upon request of the Collateral Agent at any
time after a Security Event of Default has occurred and is continuing, the
Grantor will, at its own expense, notify any parties obligated on any of the
Collateral to make payment to the Collateral Agent of any amounts due or to
become due thereunder.
(b) Whenever a Security Event of Default has occurred and is
continuing, the Collateral Agent shall be authorized to endorse, in the name of
the Grantor, any item, howsoever received by the Collateral Agent, representing
any payment on or other proceeds of any of the Collateral.
(c) Whenever Borrower shall, in accordance with Section 6(G) of the
Credit Agreement, sell any Collateral and apply the proceeds in accordance with
Section 6(G) of the Credit Agreement, such Collateral shall be released from the
lien of this Security Agreement and the Collateral Agent shall, at the cost and
expense of the Borrower provide such documentation in connection therewith as
Borrower may reasonably request.
SECTION 4.1.4. Transfers and Other Liens. The Grantor shall not:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, except in a transaction not prohibited by
subparagraph 6(C)(2) of the Credit Agreement; or
(b) create or suffer to exist any lien, security interest, charge or
encumbrance upon or with respect to any of the Collateral to secure Indebtedness
of any Person or entity, except for the security interest created by this
Security Agreement and except as permitted by subparagraph 6(B) of the Credit
Agreement.
SECTION 4.1.5. Further Assurances, etc. The Grantor agrees that, from
time to time at its own expense, the Grantor will promptly execute and deliver
all further instruments and documents, and take all further action, that may be
necessary or desirable, or that the Collateral Agent may request, in order to
perfect, preserve and protect any security interest granted or purported to be
granted hereby or to enable the Collateral Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without limiting
the generality of the foregoing, the Grantor will
(a) upon the request of the Collateral Agent at any time a Security
Event of Default has occurred and is continuing, xxxx conspicuously each
document included in the Inventory,
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each chattel paper and other contract or agreement included in the Receivables,
and, at the request of the Collateral Agent, each of its records pertaining to
the Collateral, with a legend, in form and substance satisfactory to the
Collateral Agent, indicating that such document, chattel paper, Receivable or
other Collateral is subject to the security interest granted hereby;
(b) except as set forth in Section 3.1.4 of this Agreement, if any
Receivable shall be evidenced by a promissory note or other instrument,
negotiable document or chattel paper, deliver and pledge to the Collateral Agent
hereunder such promissory note, instrument, negotiable document or chattel paper
duly endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance satisfactory to the Collateral Agent;
(c) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices (including, without
limitation, any assignment of claim form under or pursuant to the federal
assignment of claims statute, 31 U.S.C. ss. 3727, any successor or amended
version thereof or any regulation promulgated under or pursuant to any version
thereof), as may be necessary or desirable, or as the Collateral Agent may
request, in order to perfect and preserve the security interests and other
rights granted or purported to be granted to the Collateral Agent hereby; and
(d) furnish to the Collateral Agent, from time to time at the
Collateral Agent's request, statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Collateral Agent may reasonably request, all in reasonable
detail.
With respect to the foregoing and the grant of the security interest hereunder,
the Grantor hereby authorizes the Collateral Agent to file one or more financing
or continuation statements, and amendments thereto, relative to all or any part
of the Collateral without the signature of the Grantor where permitted by law. A
carbon, photographic or other reproduction of this Security Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
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ARTICLE V
THE COLLATERAL AGENT
SECTION 5.1. Collateral Agent Appointed Attorney-in-Fact. The Grantor
hereby irrevocably appoints the Collateral Agent the Grantor's attorney-in-fact,
with full authority in the place and stead of the Grantor and in the name of the
Grantor or otherwise, from time to time in the Collateral Agent's discretion, to
take any action and to execute any instrument which the Collateral Agent may
deem necessary or advisable to accomplish the purposes of this Security
Agreement, including, without limitation:
(a) after the occurrence and during the continuance of any Security
Event of Default, to ask, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) after the occurrence and during the continuance of any Security
Event of Default, to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a) above;
(c) after the occurrence and during the continuance of any Security
Event of Default, to file any claims or take any action or institute any
proceedings which the Collateral Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Collateral Agent with respect to any of the Collateral; and
(d) to perform the affirmative obligations of the Grantor hereunder
(including all obligations of the Grantor pursuant to Section 4.1.5).
The Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Collateral Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Collateral Agent may itself perform,
or cause performance of, such agreement, and the expenses of the Collateral
Agent incurred in connection therewith shall be payable by the Grantor pursuant
to Section 6.2.
SECTION 5.3. Collateral Agent Has No Duty. In addition to, and not in
limitation of, Section 2.4, the powers conferred on the Collateral Agent
hereunder are solely to protect its interest (on behalf of the Secured Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Collateral or as to the taking of any necessary
steps to preserve rights against prior parties or any other rights pertaining to
any Collateral.
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SECTION 5.4. Reasonable Care. The Collateral Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Collateral Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
of the Collateral if it takes such action for that purpose as the Grantor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Security Event of Default, but failure of the
Collateral Agent to comply with any such request at any time shall not in itself
be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Security Event of Default shall
have occurred and be continuing:
(a) The Collateral Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may (i) require the Grantor to, and the Grantor hereby agrees that it will, at
its expense and upon request of the Collateral Agent forthwith, assemble all or
part of the Collateral as directed by the Collateral Agent and make it available
to the Collateral Agent at a place to be designated by the Collateral Agent
which is reasonably convenient to both parties and without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Collateral Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other terms
as the Collateral Agent may deem commercially reasonable. The Grantor agrees
that, to the extent notice of sale shall be required by law, at least ten days'
prior notice to the Grantor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Collateral Agent
may adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) All cash proceeds received by the Collateral Agent in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Collateral Agent, be held by the
Collateral Agent as collateral for, and then or at any time thereafter applied
(after payment of any amounts payable to the Collateral Agent pursuant to
Section 6.2) in whole or in part by the Collateral Agent as follows:
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i) FIRST against, all or any part of the Secured Obligations (excluding
all obligations now or hereafter existing which arise under or in
respect of the IRB LC Documents or the IRB Letters of Credit) pro rata
(based upon the aggregate principal amount outstanding under the Credit
Agreement, on the one hand, and the aggregate amount outstanding under
the BAI Letters of Credit, on the other hand) until satisfied in full;
and
ii) SECOND against, all or any Secured Obligations which arise under or
in respect of the IRB LC Documents or the IRB Letters of Credit.
Any surplus of such cash or cash proceeds held by the Collateral Agent
and remaining after payment in full of all the Secured Obligations, and the
termination of all the commitments under both the Credit Agreement and the
Letter of Credit Agreement and the termination of all IRB LC Documents and the
passage of 30 days after the expiration or termination of the Letters of Credit,
shall be paid over to the Grantor or to whomsoever may be lawfully entitled to
receive such surplus.
SECTION 6.2. Indemnity and Expenses.
(a) The Grantor agrees to indemnify the Collateral Agent and each other
Secured Party from and against any and all claims, losses and liabilities
arising out of or resulting from this Security Agreement (including, without
limitation, enforcement of this Security Agreement), except claims, losses or
liabilities resulting from the Collateral Agent's gross negligence or wilful
misconduct.
(b) The Grantor will upon demand pay to the Collateral Agent the amount
of any and all reasonable expenses, including the reasonable fees and
disbursements of its counsel and of any experts and agents, which the Collateral
Agent may incur in connection with (i) the administration of this Security
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent or the
Secured Parties hereunder, or (iv) the failure by the Grantor to perform or
observe any of the provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Security Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
14
SECTION 7.2. Amendments; Voting etc. No amendment to or waiver of any
provision of this Security Agreement nor consent to any departure by the Grantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Any decisions to be made or directions to be given by the Secured Parties
as a group shall be made as set forth in the Credit Agreement, but shall not in
any event include BAI in its capacity as LC Issuer.
SECTION 7.3. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and shall be mailed or telecopied or delivered to the parties
hereto, at the address set forth below their signature hereto, or at such other
address as shall be designated by such party in a written notice to each other
party complying as to delivery with the terms of this Section. All such notices
and other communications shall, if mailed and properly addressed with postage
prepaid, return receipt requested, or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice transmitted by
telecopier shall be deemed given when transmitted (upon receipt of electronic
confirmation of transmission).
SECTION 7.4. Section Captions. Section captions used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
SECTION 7.5. Severability. Wherever possible each provision of this
Security Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
SECTION 7.6. Governing Law, Entire Agreement, etc. THIS SECURITY
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT
OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
SECTION 7.7. Waiver of Jury Trial. THE SECURED PARTIES AND THE GRANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
15
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE GRANTOR. THE GRANTOR
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY AND THE LETTER OF CREDIT AGREEMENT) AND THAT THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT
AGREEMENT, EACH SUCH OTHER LOAN DOCUMENT AND THE LETTER OF CREDIT AGREEMENT.
16
IN WITNESS WHEREOF, the Grantor has caused this Security Agreement to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
THE GENLYTE GROUP
INCORPORATED
By:___________________________________
Title: ____________________________
Address: 000 Xxxxxxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: _________________________
Telecopy No.: _____________________
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Agent
By:___________________________________
Title: ____________________________
Address: __________________________
__________________________
Attention:____________________________
Telecopy No.:_________________________
17
SCHEDULE I
to Security
Agreement
Item A. Location of Equipment
Item B. Location of Inventory
Item C. Location of Books and Records
Item D. Trade Names, Prior Legal Names, Mergers, etc.
Item E. Permitted Encumbrances
Item F. Possession of Equipment and Inventory
Attachment 2
------------
IRB Letters of Credit
EXHIBIT J
AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT
THIS AMENDED AND RESTATED LETTER OF CREDIT AGREEMENT, dated as of November
15, 1995 (this "Agreement"), between THE GENLYTE GROUP INCORPORATED, a Delaware
corporation (the "Company"), and BANK OF AMERICA ILLINOIS (the "Bank"),
W I T N E S S E T H:
WHEREAS, the Company and the Bank entered into a Letter of Credit
Agreement dated as of July 17, 1991, as extended from time to time (the
"Existing Letter of Credit Agreement") pursuant to which the Bank agrees to
issue on the Company's behalf, from time to time, standby and documentary
letters of credit (each a "Letter of Credit" and collectively the "Letters of
Credit") in accordance with the terms of the Existing Letter of Credit
Agreement; and
WHEREAS, the Company and the Bank desire to amend and restate the Existing
Letter of Credit Agreement as herein provided;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that the
Existing Letter of Credit is hereby amended and restated as follows:
SECTION 1. Defined Terms. All capitalized terms not otherwise defined in
this Agreement shall have the meanings provided for in the Amended and Restated
Credit Agreement, dated as of November 15, 1995, among the Company, the banks
named therein and Bank of America National Trust and Savings Association as
agent (the "Agent") for such banks (as amended, restated or otherwise modified
from time to time, the "Credit Agreement"), as amended, supplemented or
otherwise modified from time to time.
SECTION 2. Commitment. The Bank agrees to issue on behalf of the Company one
or more Letters of Credit, from time to time, on or after the date hereof and
prior to November 14, 1996 (such date, together with any extensions thereto,
herein referred to as the "Termination Date"), provided, however, that at no
time shall the aggregate principal amount of Letter of Credit Outstandings (as
defined below) exceed $15,000,000 (the "Commitment Amount"). The Termination
Date shall be automatically extended for one year, annually, but in no event
shall the Termination Date be extended beyond November 14, 2000, unless at least
90 days prior to the then Termination Date, the Company or the Bank shall by
written notice to the other request that the Termination Date not be
automatically extended. For purposes of this Agreement "Letter of Credit
Outstandings" means, on any date, an amount equal to the sum (without
duplication) of (a) the then aggregate amount which is undrawn and available
under all Letters of Credit issued and outstanding hereunder plus (b) the then
aggregate amount of all unpaid and outstanding Reimbursement Obligations (as
defined in Section 5) arising in connection with Letters of Credit issued
hereunder. The Termination Date may be extended on such terms and for such
periods of time as may be agreed to in writing by the Company and the Bank from
time to time.
SECTION 3. Issuance of Letters of Credit. By delivering to the Bank a
written notice on or before 11:00 a.m., New York time, on a Business Day on or
prior to the then Termination Date, specifying the face amount of the Letter of
Credit, the date on which such Letter of Credit is to be issued, the name and
address of the beneficiary, the obligation such Letter of Credit supports and
the Stated Expiry Date (as defined below) of such Letter of Credit, the Borrower
may, from time to time, irrevocably request, on not less than three (3) nor more
than ten (10) Business Days' notice, in the case of an initial issuance of a
Letter of Credit, and not less than ten (10) days' prior notice, in the case of
a request for the extension of the Stated Expiry Date of a Letter of Credit,
that the Bank issue, or extend the Stated Expiry Date of, as the case may be, an
irrevocable letter of credit in such form as may be requested by the Company and
approved by the Bank, solely for the purposes described in Section 12(b). Each
Letter of Credit shall by its terms be stated to expire on a date (its "Stated
Expiry Date") no later than the one year anniversary of the date of issuance or
extension of such Letter of Credit. In any event, each Letter of Credit shall
have a Stated Expiry Date no later than the one year anniversary of the date of
issuance or extension of such Letter of Credit.
Subject to the terms and conditions hereof (including Section 8), the Bank
will issue such Letter of Credit and make available to the beneficiary thereof
the original of each Letter of Credit which it issues hereunder.
SECTION 4. Disbursements. Subject to the terms and provisions of each
Letter of Credit and this Agreement, upon presentment of any such Letter of
Credit to the Bank for payment, the Bank shall make such payment to the
beneficiary (or its designee) of such Letter of Credit on the date designated
for such payment (the "Disbursement Date"). The Bank will notify the Company
promptly of the presentment for payment of any such Letter of Credit, together
with notice of the Disbursement Date therefor. Prior to 11:00 a.m., New York
time, on the next Business Day following the Disbursement Date, the Company
shall reimburse the Bank for all amounts disbursed under such Letter of Credit,
together with all interest accrued thereon since the Disbursement Date, at the
then applicable rate of interest for Reference Rate Loans.
-2-
SECTION 5. Reimbursement. The obligation (a "Reimbursement Obligation") of
the Company under Section 4 to reimburse the Bank with respect to each
Disbursement (including interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Company may have, including any defense based upon
the failure of any Disbursement to conform to the terms of the applicable Letter
of Credit (if, in the Bank's good faith opinion, such Disbursement is determined
to be appropriate) or any non-application or misapplication by the beneficiary
of the proceeds of such Letter of Credit; provided, however, that after paying
in full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of the Company to commence any proceeding against the Bank for
any wrongful Disbursement made by the Bank under a Letter of Credit as a result
of acts or omissions constituting gross negligence or willful misconduct on the
part of the Bank.
SECTION 6. Deemed Disbursements. Upon the occurrence and during the
continuation of any event which, after the giving of notice or lapse of time or
both, would constitute an event of default under subdivision 7(A)(6) of the
Credit Agreement or, with notice from the Agent, upon the occurrence and during
the continuation of any event of default under the Credit Agreement:
(a) an amount equal to that portion of all Letters of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all issued and outstanding Letters of Credit shall,
without demand upon or notice to the Company, be deemed to have been paid
out or disbursed by the Bank under such Letters of Credit (notwithstanding
that such amount may not in fact have been so paid out or disbursed); and
(b) the Company shall be immediately obligated to reimburse the Bank
for the amount deemed to have been so paid or disbursed by the Bank.
Any amounts so payable by the Borrower pursuant to this Section 6 shall be
deposited in cash in an account designated by the Bank. At such time when such
default or such event of default shall have been cured or waived (and provided
no other default under the Credit Agreement has occurred and is continuing and
the loans under the Credit Agreement have not been accelerated pursuant to
paragraph 7 thereof), the Bank shall return to the Company all amounts then on
deposit with the Bank pursuant to this Section 6, net of any amounts applied to
the payment of any amounts owing with respect to the Letters of Credit.
SECTION 7. Nature of Reimbursement Obligations. The Bank shall assume all
risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Bank (except to the extent of its own gross negligence
or willful misconduct) shall not be responsible for:
-3-
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter
of Credit;
(d) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, telecopier,
telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
SECTION 8. Conditions Precedent. The obligation of the Bank
to issue any Letters of Credit or to extend the Stated Expiry Date
of any existing Letter of Credit is subject to the following
conditions:
(a) Notice. The Company shall have given the notice
described in Section 2 hereof.
(b) Compliance. The Company shall then be in compliance with all the
terms, covenants and conditions of this Agreement which are binding upon
it; there shall exist no event of default as designated in paragraph 7 of
the Credit Agreement and no event which, with the giving of notice or the
lapse of time or both, would constitute such an event of default; the
representations and warranties contained in Section 9 shall be true with
the same effect as though such representations and warranties had then
been made and the Bank shall have received a certificate substantially in
the form of Annex A, dated the date of the issuance or extension of the
Stated Expiry Date of such Letter of Credit and signed by the President, a
Vice President, or the Treasurer of the Company.
None of the foregoing shall affect, impair or prevent the vesting or any of the
rights or powers granted to the Bank hereunder. In furtherance and extension and
not in limitation or derogation of any of the foregoing, any action taken or
omitted to be taken by the Bank in good faith (and not constituting gross
negligence or
-4-
willful misconduct) shall be binding upon the Company and shall not put the Bank
under any resulting liability to the Company.
SECTION 9. Representations and Warranties. The Company
represents and warrants to the Bank as follows:
(a) Organization and Good Standing. Each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation, and has the
corporate power to own its properties and to carry on its business as now
being conducted.
(b) Corporate Authority. The Company has full power and authority to
enter into this Agreement and to request the issuance of Letters of Credit
and the extension of the Stated Expiry Dates thereof, and to incur the
obligations provided for herein, all of which have been duly authorized by
all proper and necessary corporate action. No consent or approval of
shareholders is required as a condition to the validity of this Agreement.
(c) Binding Agreement. This Agreement constitutes the valid and
legally binding obligation of the Company enforceable in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by the availability of equitable
remedies or the application of equitable principles.
(d) No Conflicting Agreements. The execution, delivery and
performance of this Agreement and the Letters of Credit (including each
request for the issuance of a Letter of Credit or extension of the Stated
Expiry Date thereof) will not violate, conflict with, constitute a default
under, or result in the creation of any lien or security interest on any
property or assets of the Company or any Restricted Subsidiary pursuant to
the provisions of any charter, by-law or preference stock provision of the
Company or any of its Restricted Subsidiaries or any provision of any
existing mortgage, indenture, contract or agreement binding on the Company
or any of its Restricted Subsidiaries, or affecting their respective
properties other than (i) as provided for in the Credit Agreement,
Security Agreement and Pledge Agreement and (ii) any such mortgage,
indenture, contract or other agreement which is not material to the
Company and any of its Restricted Securities, taken as a whole.
(e) Litigation. There are no suits or administrative or other
proceedings or investigations pending, or to the knowledge of the Company
threatened, against or affecting the Company or its Restricted
Subsidiaries, if any, (i) with respect to this Agreement or any of the
Letters of Credit, or the transactions contemplated hereby or thereby or
(ii) which
-5-
could reasonably be expected to have a material adverse effect on the
financial condition of the Company and its Restricted Subsidiaries, if
any, taken as a whole. Company has disclosed the existence of the Xxxxx
Corporation Litigation to Agent and the Banks as described in the Opinion
of Counsel required by (a) of subdivision 4(A)(2) of the Credit Agreement.
(f) Compliance with Government Regulations. No action of, or filing
with, any governmental or public body is required on the part of the
Company as a condition to the valid execution, delivery or performance of
this Agreement or the Letters of Credit (including each request for the
issuance of a Letter of Credit or extension of the Stated Expiry Date
thereof). The execution, delivery and performance of this Agreement
(including each request for the issuance of a Letter of Credit or
extension of the Stated Expiry Date thereof) does not violate any
provision of any Federal, state or municipal law, rule or regulation
(including, without limitation, Regulation U or X of the Board of
Governors of the Federal Reserve System), or any judgment, order or decree
binding on the Company.
(g) Representations and Warranties under the Credit Agreement. The
representations and warranties of the Company set forth in subdivisions
3(f), (g), and (j) of the Credit Agreement are herein incorporated as set
forth therein.
SECTION 10. Other Terms of Letters of Credit. In addition to, and not in
limitation of, the terms set forth in this Agreement, the Letters of Credit
shall be issued pursuant to and in accordance with such other terms and
conditions as are agreed to between the Bank and the Company from time to time.
SECTION 11. Security. The obligations of the Company under this Agreement
and the Letters of Credit, whether now or hereafter existing and whether for
principal, interest, costs, fees, expenses or otherwise, is secured by certain
assets of the Company pursuant to and in accordance with the terms of the Pledge
Agreement and the Security Agreement.
SECTION 12. Covenants.
(a) Incorporation by Reference of Covenants. Until this Agreement is
terminated and all Letters of Credit Outstandings and other obligations of the
Company hereunder have been paid and discharged in full to the satisfaction of
the Bank, the Company will comply with each covenant and agreement contained in
paragraphs 5 and 6 of the Credit Agreement as though specifically set forth
herein, provided, however, that every reference therein to "Agreement" or "Bank"
or "Banks" shall refer to this Agreement or the Bank, as the case may be.
-6-
(b) Use of Proceeds. The Letters of Credit shall be used for working
capital and general corporate purposes (excluding any acquisition of an Acquired
Company).
SECTION 13. Events of Default. Upon the occurrence and during the
continuance of any event of default set forth in the Credit Agreement or as may
otherwise be agreed to between the parties hereto pursuant to Section 10 (an
"Event of Default"), the Bank may, by notice to the Company, declare all
commitments to issue Letters of Credit hereunder terminated and all obligations
of the Company hereunder to be immediately due and payable.
SECTION 14. Fees. The Company agrees to pay the Bank:
(a) a standby Letter of Credit fee in an amount equal to 2%
per annum of the Stated Amount of each standby Letter of Credit;
and
(b) a documentary Letter of Credit fee in an amount agreed to from time to
time between the Company and the Bank.
All fees shall be paid, as applicable, on the first Business Day of July,
October, January and April of each year and on the Termination Date.
SECTION 15. Existing Letters of Credit. Anything in this Agreement to the
contrary notwithstanding, each of the following letters of credit of the Bank,
including any amendments or modifications thereto or extension of the stated
expiry date thereof, shall not be a "Letter of Credit" for any purpose of this
Agreement:
(i) Number C7144193, dated May 2, 1990, naming Manufacturers and
Traders Trust Company, as trustee, as beneficiary, in the amount of
$5,491,081.18 and with a stated expiry date of August 15, 1996;
(ii) Number C7151092, dated June 6, 1990, naming Manufacturers
and Traders Trust Company, as trustee, as beneficiary, in the amount
of $3,915,472.67 and with a stated expiry date of August 15, 1996;
and
(iii) Number C7152816, dated June 28, 1990, naming Manufacturers
and Traders Trust Company, as trustee, as beneficiary, in the amount
of $1,000,000 and with a stated expiry date of August 15, 1997.
SECTION 16. Amendments. This Agreement shall not be amended,
supplemented or otherwise modified except upon the written
agreement of the Company, the Bank and the Required Banks.
SECTION 17. Notices. All notices to the Bank and the Company
shall be provided in the manner specified in, and to the addresses
set forth in, the Credit Agreement.
-7-
SECTION 18. Section Captions. Section captions used in this
Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
SECTION 19. Severability. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
SECTION 20. Governing Law, Entire Agreement, etc. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK. THIS AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 21. Waiver of Jury Trial. THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE PARTIES HEREIN. THE
COMPANY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE BANK ENTERING INTO THIS AGREEMENT AND THE LETTERS OF CREDIT.
-8-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
THE GENLYTE GROUP INCORPORATED
By:
__________________________________
Name:
Title:
BANK OF AMERICA ILLINOIS
By:
__________________________________
Name:
Title:
-9-
ANNEX A
-------
FORM OF COMPLIANCE CERTIFICATE
------------------------------
THE GENLYTE GROUP INCORPORATED (the "Company") hereby certifies as of the
date hereof to Bank of America Illinois (the "Bank") pursuant to the Letter of
Credit Agreement, dated as of November 15, 1995 (the "Agreement"), between the
Company and the Bank as follows (in each case after giving effect to the
transactions to be consummated on this date):
1. The Company is in compliance with all of the terms,
covenants and conditions of the Agreement.
2. There is no event of default as provided in Section 13 of the Agreement
and there is no event which, with the giving of notice or the lapse of time or
both, would constitute such an event of default.
3. The representations and warranties contained in Section 9 of the
Agreement are true with the same effect as though such representations and
warranties had been made as of the date hereof.
Dated: _______________, 19__
THE GENLYTE GROUP INCORPORATED
By:
__________________________________
Name:
Title:
Schedule 1
----------
The Genlyte Group Incorporated
Current Standby Letters of Credit
as of November 7, 1995
Existing BAI Letters of Credit
------------------------------
LC Number Issue Date Beneficiary Amount Expiry Date
--------- --------------- ----------------------- ------------- -------------
C7182090 August 01, 1991 Travelers Indemnity Co. $7,070,333.04 July 15, 1996
C7252303 July 01, 1994 Travelers Indemnity Co. $1,425,000.00 July 02, 1996
C7253730 July 25, 1994 Jobs for Fall River, Inc. $2,000,000.00 July 15, 1996
