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CREDIT AGREEMENT
among
OMNIQUIP INTERNATIONAL, INC.,
VARIOUS LENDING INSTITUTIONS,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent and Co-Arranger,
FIRST UNION CAPITAL MARKETS CORP.,
as Co-Arranger,
and
FIRST UNION INVESTORS, INC.,
as Administrative Agent
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Dated as of August 4, 1999
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$25,821,762.94
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit..........................................1
1.01 The Commitments......................................................1
1.02 Minimum Amount of Each Borrowing.....................................1
1.03 Notice of Borrowing..................................................1
1.04 Disbursement of Funds................................................2
1.05 Notes................................................................3
1.06 Conversions..........................................................3
1.07 Pro Rata Borrowings..................................................3
1.08 Interest.............................................................4
1.09 Interest Periods.....................................................4
1.10 Increased Costs, Illegality, etc. ...................................5
1.11 Breakage.............................................................7
1.12 Change of Lending Office.............................................8
1.13 Replacement of Banks.................................................8
SECTION 2. Commitment Commission; Fees; Reductions of Commitment...............9
2.01 Fees.................................................................9
2.02 Voluntary Termination of Unutilized Commitments......................9
2.03 Mandatory Reduction of Commitments...................................9
SECTION 3. Prepayments; Payments; Taxes.......................................10
3.01 Voluntary Prepayments...............................................10
3.02 Mandatory Repayments and Commitment Reductions......................11
3.03 Method and Place of Payment.........................................13
3.04 Net Payments........................................................13
SECTION 4. Conditions Precedent...............................................15
4.01 Execution of Agreement; Notes.......................................15
4.02 Officer's Certificate...............................................15
4.03 Opinions of Counsel.................................................15
4.04 Corporate Documents; Proceedings, etc. .............................16
4.05 Adverse Change, etc. ...............................................16
4.06 Litigation..........................................................16
4.07 Amended and Restated Pledge Agreement...............................16
4.08 Amended and Restated Security Agreement.............................17
4.09 Subsidiaries Guaranty...............................................17
4.10 Amended and Restated Mortgages; Title Insurance, etc. ..............17
4.11 Solvency Certificate................................................17
(i)
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4.12 Fees, etc. .........................................................18
4.13 Non-U.S. Assets; Financial Statements...............................18
SECTION 5. Conditions Precedent to All Credit Events..........................18
5.01 No Default; Representations and Warranties..........................18
5.02 Notice of Borrowing.................................................18
5.03 Total Unutilized Revolving Loan Commitment Under the Existing
Credit Agreement....................................................18
SECTION 6. Representations, Warranties and Agreements.........................19
6.01 Corporate and Other Status..........................................19
6.02 Corporate and Other Power and Authority.............................19
6.03 No Violation........................................................19
6.04 Approvals...........................................................20
6.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections, etc. ..................................................20
6.06 Litigation..........................................................21
6.07 True and Complete Disclosure........................................21
6.08 Use of Proceeds; Margin Regulations.................................21
6.09 Tax Returns and Payments............................................21
6.10 Compliance with ERISA...............................................22
6.11 The Security Documents..............................................23
6.12 Properties..........................................................24
6.13 Capitalization......................................................24
6.14 Subsidiaries........................................................25
6.15 Compliance with Statutes, etc. .....................................25
6.16 Investment Company Act..............................................25
6.17 Public Utility Holding Company Act .................................25
6.18 Environmental Matters...............................................25
6.19 Labor Relations.....................................................26
6.20 Patents, Licenses, Franchises and Formulas..........................26
6.21 Indebtedness........................................................26
SECTION 7. Affirmative Covenants..............................................27
7.01 Incorporation by Reference..........................................27
7.02 Additional Information Covenants....................................27
SECTION 8. Negative Covenants.................................................27
8.01 Incorporation by Reference..........................................27
8.02 Bank Accounts.......................................................28
SECTION 9. Events of Default..................................................28
9.01 Payments............................................................28
9.02 Representations, etc. ..............................................28
(ii)
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9.03 Covenants...........................................................28
9.04 Default Under Other Agreements......................................28
9.05 Bankruptcy, etc. ...................................................28
9.06 ERISA...............................................................29
9.07 Security Documents..................................................29
9.08 Subsidiaries Guaranty...............................................30
9.09 Judgments...........................................................30
9.10 Change of Control...................................................30
SECTION 10. Definitions and Accounting Terms..................................30
10.01 Defined Terms......................................................30
SECTION 11. The Administrative Agent and the Syndication Agent................49
11.01 Appointment........................................................49
11.02 Nature of Duties...................................................50
11.03 Lack of Reliance on the Administrative agent and the Syndication
Agent..............................................................50
11.04 Certain Rights of the Agents.......................................50
11.05 Reliance...........................................................51
11.06 Indemnification....................................................51
11.07 The Administrative Agent and the Syndication Agent in Their
Individual Capacity................................................51
11.08 Holders............................................................51
11.09 Resignation by the Administrative Agent and the Syndication Agent..52
SECTION 12. Miscellaneous.....................................................52
12.01 Payment of Expenses, etc. .........................................52
12.02 Right of Setoff....................................................53
12.03 Notices............................................................54
12.04 Benefit of Agreement; Assignments; Participations..................54
12.05 No Waiver; Remedies Cumulative.....................................56
12.06 Payments Pro Rata..................................................56
12.07 Calculations; Computations; Accounting Terms.......................57
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL...............................................57
12.09 Counterparts.......................................................58
12.10 Effectiveness......................................................58
12.11 Headings Descriptive...............................................58
12.12 Amendment or Waiver, etc. .........................................58
12.13 Survival...........................................................59
12.14 Domicile of Loans..................................................59
12.15 Register...........................................................60
12.16 Confidentiality....................................................60
12.17 Limitation on Increased Costs......................................61
(iii)
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SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Non-U.S. Assets
SCHEDULE V Subsidiaries
SCHEDULE VI Existing Indebtedness
SCHEDULE VII Projections
EXHIBIT A Notice of Borrowing
EXHIBIT B Form of Note
EXHIBIT C Section 4.04(b)(ii) Certificate
EXHIBIT D Opinion of Dickstein, Shapiro, Xxxxx &
Xxxxxxxx LLP, counsel to the Credit Parties
EXHIBIT E Officers' Certificate
EXHIBIT F Form of Amended and Restated Pledge Agreement
EXHIBIT G Form of Amended and Restated Security Agreement
EXHIBIT H Form of Subsidiaries Guaranty
EXHIBIT I Solvency Certificate
EXHIBIT J Assignment and Assumption Agreement
EXHIBIT K Notice of Account Designation
(iv)
CREDIT AGREEMENT, dated as of August 4, 1999, among OMNIQUIP
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), the Banks party
hereto from time to time, XXXXXX XXXXXXX SENIOR FUNDING, INC., as Syndication
Agent and Co-Arranger, First Union Capital Markets Corp., as Co-Arranger and
FIRST UNION INVESTORS, INC., as Administrative Agent (all capitalized terms used
herein and defined in Section 10 are used herein as therein defined).
W I T N E S S E T H :
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WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to the Borrower the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, at any time and from
time to time on and after the Effective Date and prior to the Maturity Date, to
make a revolving loan or revolving loans (each a "Loan" and, collectively, the
"Loans") to the Borrower, which Loans (i) shall, at the option of the Borrower,
be incurred and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that except as otherwise specifically provided in
Section 1.10(b), all Loans comprising the same Borrowing shall at all times be
of the same Type, (ii) may be repaid and reborrowed in accordance with the
provisions hereof and (iii) shall not exceed for any such Bank at any time
outstanding that aggregate principal amount which equals the Commitment of such
Bank at such time.
1.02 Minimum Amount of Each Borrowing. The aggregate principal
amount of each Borrowing of Loans shall not be less than the Minimum Borrowing
Amount and, if greater, shall be in integral multiples of $100,000. More than
one Borrowing may occur on the same date, but at no time shall there be
outstanding more than eight Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to
incur Loans hereunder, the Borrower shall give the Administrative Agent at its
Notice Office at least one Business Day's prior notice of each Base Rate Loan
and at least three Business Days' prior notice of each Eurodollar Loan to be
incurred hereunder, provided that any such notice shall be deemed to have been
given on a certain day only if given before 12:00 Noon (Eastern time) on such
day. Each such notice (each a "Notice of Borrowing"), except as otherwise
expressly provided in Section 1.10, shall be irrevocable and shall be given by
the Borrower in writing, or by telephone promptly confirmed in writing, in the
form of Exhibit A, appropriately completed to specify the aggregate principal
amount of the Loans to be incurred pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day) and whether the Loans being incurred
pursuant to such Borrowing are to be initially maintained as Base Rate Loans or
Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be
applicable thereto. The Administrative Agent
shall promptly give each Bank notice of such proposed Borrowing, of such Bank's
proportionate share thereof and of the other matters required by the immediately
preceding sentence to be specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice of any Borrowing or prepayment of
Loans, the Administrative Agent may act without liability upon the basis of
telephonic notice of such Borrowing or prepayment, believed by the
Administrative Agent in good faith to be from the Chief Executive Officer, the
President, the Vice President-Finance, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer or the Controller of the Borrower, or from
any other authorized person of the Borrower designated in writing by the
Borrower to the Administrative Agent as being authorized to give such notices,
prior to receipt of written confirmation. In each such case, the Borrower hereby
waives the right, absent manifest error, to dispute the Administrative Agent's
record of the terms of such telephonic notice of such Borrowing or prepayment of
Loans.
1.04 Disbursement of Funds. No later than 12:00 Noon (Eastern
time) on the date specified in each Notice of Borrowing, each Bank will make
available its pro rata portion (determined in accordance with Section 1.07) of
each such Borrowing requested to be made on such date. All such amounts will be
made available in Dollars and in immediately available funds at the Payment
Office of the Administrative Agent, and the Administrative Agent will make
available to the Borrower at the Payment Office the aggregate of the amounts so
made available by the Banks by delivery of such amounts to the Borrower's
Account. Unless the Administrative Agent shall have been notified by any Bank
prior to the date of Borrowing that such Bank does not intend to make available
to the Administrative Agent such Bank's portion of any Borrowing to be made on
such date, the Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Bank, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower until the date such corresponding
amount is recovered by the Administrative Agent, at a rate per annum equal to
(i) if recovered from such Bank, the Federal Funds Rate for each day during the
period consisting of the first three Business Days following such date of
availability and thereafter at the Base Rate as in effect from time to time and
(ii) if recovered from the Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Bank from its obligation to make
Loans hereunder or to prejudice any rights which the Borrower may have against
any Bank as a result of any failure by such Bank to make Loans hereunder.
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1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Bank shall be evidenced by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B, with blanks appropriately completed in conformity herewith
(each a "Note" and, collectively, the "Notes").
(b) The Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to such Bank or its registered assigns and be dated
the Effective Date (or, if issued after the Effective Date, be dated the date of
the issuance thereof), (iii) be in a stated principal amount equal to the
Commitment of such Bank (or, if issued after the termination thereof, be in a
stated principal amount equal to the outstanding Loans of such Bank at such
time) and be payable in the outstanding principal amount of the Loans evidenced
thereby, (iv) mature on the Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 3.01 and mandatory repayment as
provided in Section 3.02 and (vii) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will prior to any
transfer of its Note endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
1.06 Conversions. The Borrower shall have the option to
convert, on any Business Day occurring after the Effective Date, all or a
portion equal to at least the Minimum Borrowing Amount of the outstanding
principal amount of Loans made pursuant to one or more Borrowings of one or more
Types of Loans into a Borrowing of another Type of Loan, provided that, (i)
except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Loans being converted and no such partial conversion of
Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto and (ii) Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion. Each such conversion shall be effected
by the Borrower by giving the Administrative Agent at its Notice Office prior to
12:00 Noon (Eastern time) at least three Business Days' prior notice (each a
"Notice of Conversion") specifying the Loans to be so converted, the Borrowing
or Borrowings pursuant to which such Loans were made and, if to be converted
into Eurodollar Loans, the Interest Period to be initially applicable thereto.
The Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans. Upon any such conversion the proceeds
thereof will be deemed to be applied directly on the day of such conversion to
prepay the outstanding principal amount of the Loans being converted.
1.07 Pro Rata Borrowings. All Borrowings of Loans under this
Agreement shall be incurred from the Banks pro rata on the basis of their
Commitments. No Bank shall be responsible for any default by any other Bank of
its obligation to make Loans hereunder and each Bank shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the failure of any
other Bank to make its Loans hereunder.
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1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan from the date the
proceeds thereof are made available to the Borrower until the earlier of (i) the
maturity thereof (whether by acceleration or otherwise) and (ii) the conversion
of such Base Rate Loan into a Eurodollar Loan pursuant to Section 1.06, at a
rate per annum which shall be equal to the sum of the Applicable Base Rate
Margin plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
thereof (whether by acceleration or otherwise) and (ii) the conversion of such
Eurodollar Loan into a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10, as
applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the Applicable Eurodollar Margin plus
the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans from time to
time, provided that at no time shall any Loan bear interest after maturity at a
rate per annum which is less than 2% in excess of the rate applicable thereto at
maturity without the application of the preceding provisions of this Section
1.08(c), with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto and (iii) in respect of each Loan, on any
repayment or prepayment (on the amount repaid or prepaid), at maturity (whether
by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the Eurodollar Rate for each Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two or three-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
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(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type) and
each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the immediately preceding Interest
Period applicable thereto expires;
(iii) if any Interest Period for a Eurodollar Loan begins on
a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would
otherwise expire on a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day; provided, however, that
if any Interest Period for a Eurodollar Loan would otherwise expire on a
day which is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a
Default or an Event of Default is then in existence; and
(vi) no Interest Period in respect of any Borrowing of Loans
shall be selected which extends beyond the Maturity Date.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. In the event that any
Bank shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of
any changes arising after the Effective Date affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule, regulation, order,
guideline or request (whether or not having the force of law) or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, order, guideline or request,
such as, for example, but not limited to: (A) a change in the basis of
taxation of payment to any Bank
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of the principal of or interest on the Notes or any other amounts payable
hereunder (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Bank or any change in a tax
imposed solely on deposits or net assets of a Bank, in each case pursuant
to the laws of the jurisdiction in which it is organized or in which its
principal office or applicable lending office is located or any subdivision
thereof or therein) or (B) a change in official reserve requirements, but,
in all events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances since the date of this Agreement affecting the New York
interbank Eurodollar market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good faith
with any governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the date of this
Agreement which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone promptly confirmed
in writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower shall, subject to the provisions
of this Section 1.10(a) and Section 12.17 (to the extent applicable), pay to
such Bank, within ten Business Days after such Bank's written request therefor
and the delivery to the Borrower of the written notice described below in this
clause (y), such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Bank in its sole
discretion shall determine (but without duplication of any amounts that may be
payable to such Bank under Section 1.10(c)) as shall be required to compensate
such Bank for such increased costs or reductions in amounts received or
receivable hereunder reasonably determined by such Bank in good faith (a written
notice as to the additional amounts owed to such Bank, showing in reasonable
detail the basis for the calculation thereof, submitted to the Borrower by such
Bank shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, by giving the Administrative
Agent telephonic notice (confirmed in writing) as promptly as practicable and in
any event within one Business Day after the date that the Borrower was notified
by the affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii)
or (iii) or (y) if the affected
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Eurodollar Loan is then outstanding, upon at least three Business Days' written
notice to the Administrative Agent, require the affected Bank to convert such
Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank is
affected at any time, then all affected Banks must be treated the same pursuant
to this Section 1.10(b).
(c) If at any time after the Effective Date any Bank
determines that the introduction of or any change (which introduction or change
shall have occurred after the Effective Date) in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank, the NAIC or comparable agency, will have the effect of increasing the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank based on the existence of such Bank's
Commitments hereunder or its obligations hereunder, then the Borrower shall,
subject to the provisions of this Section 1.10(c) and Section 12.17 (to the
extent applicable), pay to such Bank, within ten Business Days after its written
demand therefor, such additional amounts as shall be required to compensate such
Bank or such other corporation for the increased cost to such Bank or such other
corporation or the reduction in the rate of return to such Bank or such other
corporation as a result of such increase of capital (but without duplication of
any amounts that may be payable to such Bank under Section 1.10(a)). In
determining such additional amounts, each Bank will act reasonably and in good
faith and will use averaging and attribution methods which are reasonable,
provided that such Bank's determination of compensation owing under this Section
1.10(c) shall, absent manifest error, be final and conclusive and binding on all
the parties hereto. Each Bank, upon determining that any additional amounts will
be payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall describe in reasonable detail the
introduction of or change in applicable law or governmental rule, regulation,
order, guideline, directive or request or change in interpretation or
administration and the basis for calculation of such additional amounts.
1.11 Breakage. The Borrower shall compensate each Bank, within
ten Business Days after its written request (which request shall set forth in
reasonable detail the basis for requesting such compensation), for all
reasonable losses, expenses and liabilities (including, without limitation, any
loss, expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Bank to fund its Eurodollar Loans
but excluding loss of anticipated profits) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of, or conversion from or into, Eurodollar Loans does not occur on a
date specified therefor in a Notice of Borrowing or Notice of Conversion
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant
to Section 3.01 or 3.02 or as a result of an acceleration of the Loans pursuant
to Section 9) or conversion of any of its Eurodollar Loans occurs on a date
which is not the last day of an Interest Period with respect thereto; (iii) if
any prepayment of any of its Eurodollar Loans is not made on any date specified
in a notice of prepayment given by the Borrower; or (iv) as a consequence of (x)
any other default by the Borrower to repay its Loans when required by the terms
of this Agreement or any Note held by such Bank or (y) any election made
pursuant to Section 1.10(b). Each Bank agrees to use commercially reasonable
efforts to minimize its losses, expenses and liabilities described in this
Section 1.11.
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1.12 Change of Lending Office. Each Bank agrees that on the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c) or Section 3.04 with respect to such Bank, it will
(subject to overall policy considerations of such Bank), if requested by the
Borrower, designate another Lending Office for any Loans affected by such event,
provided that such designation is made on such terms that such Bank and its
Lending Office suffer no economic, legal or regulatory disadvantage which such
Bank determines, in its sole discretion, to be adverse in any material respect,
with the object of avoiding the consequence of the event giving rise to the
operation of such Section. Nothing in this Section 1.12 shall affect or postpone
any of the obligations of the Borrower or the right of any Bank provided in
Sections 1.10 and 3.04.
1.13 Replacement of Banks. (a) If any Bank becomes a
Defaulting Bank or otherwise defaults in its obligations to make Loans, (b) upon
the occurrence of an event giving rise to the operation of Section 1.10(a)(ii)
or (iii), Section 1.10(c) or Section 3.04 with respect to any Bank which results
in such Bank charging to the Borrower increased costs materially in excess of
those being generally charged by the other Banks or (c) in the case of a refusal
by a Bank to consent to one or more proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as (and to the extent) provided in Section 12.12(b), the Borrower
shall have the right, if no Default or Event of Default then exists (or, in the
case of preceding clause (c), no Default or Event of Default will exist
immediately after giving effect to such replacement), to replace such Bank (the
"Replaced Bank") with one or more other Eligible Transferees (it being
acknowledged that the Replaced Bank shall be under no obligation to identify or
secure the commitment of such Eligible Transferee or assist in identifying or
securing the commitment of such Eligible Transferee), none of whom shall
constitute a Defaulting Bank at the time of such replacement and each of whom
shall be reasonably acceptable to the Administrative Agent (collectively, the
"Replacement Bank"), provided that (1) at the time of any replacement pursuant
to this Section 1.13, the Replacement Bank shall enter into one or more
Assignment and Assumption Agreements pursuant to Section 12.04(b) (and with all
fees payable pursuant to said Section 12.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire the Commitment and
outstanding Loans of the Replaced Bank and, in connection therewith, shall pay
to the Replaced Bank in respect thereof an amount equal to the sum of (i) an
amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Bank and (ii) an amount equal to all accrued, but
theretofore unpaid, Fees owing to the Replaced Bank, and (2) all obligations of
the Borrower due and owing to the Replaced Bank at such time (other than those
specifically described in clause (1) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Bank concurrently with such replacement. Upon the execution of
the respective Assignment and Assumption Agreement, the payment of amounts
referred to in clauses (1) and (2) above and, if so requested by the Replacement
Bank, delivery to the Replacement Bank of the appropriate Note or Notes executed
by the Borrower, the Replacement Bank shall become a Bank hereunder and the
Replaced Bank shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.10, 1.11, 3.04, 11.06 and 12.01), which shall survive as to such
Replaced Bank. Replacements pursuant to this Section 1.13 shall
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only be effected by assignments which otherwise meet the applicable requirements
of Section 12.04(b).
SECTION 2. Commitment Commission; Fees; Reductions of
Commitment.
2.01 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for distribution to each Non-Defaulting Bank a commitment
commission (the "Commitment Commission") for the period from and including the
Effective Date to but excluding the Maturity Date (or such earlier date as the
Total Commitment shall have been terminated), computed at a rate for each day
equal to the Applicable Commitment Commission Percentage on the daily average
Unutilized Commitment of such Non-Defaulting Bank. Accrued Commitment
Commissions shall be due and payable quarterly in arrears on each Quarterly
Payment Date and on the Maturity Date or such earlier date upon which the Total
Commitment is terminated.
(b) The Borrower agrees to pay to the Agents, for their own
account, such other fees as have been agreed to in writing by the Borrower and
the Agents.
2.02 Voluntary Termination of Unutilized Commitments. (a) Upon
at least one Business Day's prior written notice to the Administrative Agent at
its Notice Office (which notice the Administrative Agent shall promptly transmit
to each of the Banks), the Borrower shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total Unutilized
Commitment, in whole or in part, in integral multiples of $1,000,000 in the case
of partial reductions to the Total Unutilized Commitment, provided that each
such reduction shall apply proportionately to permanently reduce the Commitment
of each Bank.
(b) In the event of a refusal by a Bank to consent to one or
more proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as (and to the extent)
provided in Section 12.12(b), the Borrower may, subject to its compliance with
the requirements of Section 12.12(b), upon 5 Business Days' prior written notice
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks) terminate the
Commitment of such Bank and, so long as all Loans, together with accrued and
unpaid interest, Fees and all other amounts, owing to such Bank are repaid
concurrently with the effectiveness of such termination pursuant to Section
3.01(b) (at which time Schedule I shall be deemed modified to reflect such
changed amounts), and at such time such Bank shall no longer constitute a "Bank"
for purposes of this Agreement, except with respect to indemnifications under
this Agreement (including, without limitation, Sections 1.10, 1.11, 3.04, 11.06
and 12.01), which shall survive as to such repaid Bank.
2.03 Mandatory Reduction of Commitments. (a) The Total
Commitment (and the Commitment of each Bank) shall (i) terminate in its entirety
on the Maturity Date and (ii) be reduced from time to time prior to such date to
the extent required by Section 3.02.
(b) Each reduction of the Total Commitment pursuant to this
Section 2.03 (or pursuant to Section 3.02) shall be applied proportionately to
permanently reduce the Commitment of each Bank.
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SECTION 3. Prepayments; Payments; Taxes.
3.01 Voluntary Prepayments. (a) The Borrower shall have the
right to prepay the Loans, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent prior
to 12:00 Noon (Eastern time) at its Notice Office (x) at least one Business
Day's prior written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Base Rate Loans and (y) at least three
Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Eurodollar Loans, the amount
of such prepayment and the Types of Loans to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each
of the Banks;
(ii) each prepayment shall be in an aggregate principal
amount of at least $500,000 and, if greater, in integral multiples of
$100,000, provided that if any partial prepayment of Eurodollar Loans made
pursuant to any Borrowing shall reduce the outstanding principal amount of
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans and any election of an
Interest Period with respect thereto given by the Borrower shall have no
force or effect;
(iii) prepayments of Eurodollar Loans made pursuant to this
Section 3.01(a) may only be made on the last day of an Interest Period
applicable thereto unless such prepayment is accompanied by any breakage
costs and any other amounts due such Bank in accordance with Section 1.11;
and
(iv) each prepayment in respect of any Loans made pursuant
to a Borrowing shall be applied pro rata among such Loans, provided that,
at the Borrower's election, in connection with any prepayment of Loans
pursuant to this Section 3.01(a), such prepayment shall not be applied to
any Loans of a Defaulting Bank.
(b) In the event of a refusal by a Bank to consent to one or
more proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as (and to the extent)
provided in Section 12.12(b), the Borrower may, upon 5 Business Days' prior
written notice to the Administrative Agent at its Notice Office (which notice
the Administrative Agent shall promptly transmit to each of the Banks) repay all
Loans, together with accrued and unpaid interest, Fees, and other amounts owing
to such Bank in accordance with, and subject to the requirements of, said
Section 12.12(b) so long as (i) in the case of the repayment of Loans of any
Bank pursuant to this clause (b) the Commitment of such Bank is terminated
concurrently with such repayment pursuant to Section 2.02(b) (at which time
Schedule I shall be deemed modified to reflect the changed Commitments) and (ii)
the consents, if any, required by Section 12.12(b) in connection with the
repayment pursuant to this clause (b) have been obtained.
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3.02 Mandatory Repayments and Commitment Reductions. (a) (i)
On any day on which the sum of the aggregate outstanding principal amount of the
Loans made by Non-Defaulting Banks exceeds the Adjusted Total Commitment as then
in effect, the Borrower shall prepay on such day all Loans of Non-Defaulting
Banks in an amount equal to such excess.
(ii) On any day on which the aggregate outstanding principal
amount of the Loans made by any Defaulting Bank exceeds the Commitment of such
Defaulting Bank, the Borrower shall prepay on such day principal of Loans of
such Defaulting Bank in an amount equal to such excess.
(b) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 3.02, on each date on or after
the Effective Date upon which the Borrower or any of its Wholly-Owned
Subsidiaries receives any cash proceeds from any incurrence by the Borrower or
any of its Wholly-Owned Subsidiaries of Indebtedness for borrowed money (other
than Indebtedness for borrowed money permitted to be incurred pursuant to
Section 9.04 of the Existing Credit Agreement as in effect on the Effective Date
(except for (i) the incurrence of New Subordinated Notes pursuant to Section
9.04(vi) of the Existing Credit Agreement, the proceeds of which are required to
be applied as set forth in this Section 3.02(b) and (ii) Indebtedness of Snorkel
Elevating Work Platforms Limited and/or Snorkel Elevating Work Platforms Pty
Limited under the Snorkel Revolver, the proceeds of which are required to be
applied as set forth in this Section 3.02(b), provided that in no event shall
the Total Commitment be reduced to less than $20,000,000 as a result of the
entering into of the Snorkel Revolver)), an amount equal to 100% of the Net Debt
Proceeds of the respective incurrence of Indebtedness shall be applied as a
mandatory repayment of principal of outstanding Loans (and/or, if the Total
Commitment has not yet been terminated, as a mandatory reduction to the Total
Commitment, subject to the proviso of clause (ii) of this Section 3.02(b)) in
accordance with the requirements of Sections 3.02(f) and (g).
(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 3.02, on each date on or after
the Effective Date upon which the Borrower or any of its Wholly-Owned
Subsidiaries receives cash proceeds from any Asset Sale, an amount equal to 100%
of the Net Sale Proceeds from the respective Asset Sale shall be applied as a
mandatory repayment of principal of outstanding Loans (and/or, if the Total
Commitment has not yet been terminated, as a mandatory reduction to the Total
Commitment) in accordance with the requirements of Sections 3.02(f) and (g),
provided that, so long as no Default or Event of Default then exists, up to
$2,000,000 in the aggregate in any fiscal year of the Borrower of Net Sale
Proceeds from Asset Sales may be used or contractually committed to be used to
purchase like assets pursuant to Section 9.07(b) of the Existing Credit
Agreement within 180 days following the date of the respective Asset Sale (and
the Net Sale Proceeds therefrom shall not be required to be applied on the date
of receipt of such Net Sale Proceeds pursuant to this Section 3.02(c)) so long
as the Borrower delivers a certificate to the Administrative Agent on or prior
to such date stating that such Net Sale Proceeds shall be used or contractually
committed to be used to purchase like assets within 180 days following the date
of such Asset Sale (which certificate shall set forth the estimates of the
proceeds to be so expended) and provided further, that (1) if all or any portion
of such Net Sale Proceeds are not so reinvested in like assets within such 180
day period or contractually committed to be so reinvested within such 180-day
period, 100% of such
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remaining portion shall be applied on the last day of such applicable period as
a mandatory repayment of principal of outstanding Loans as provided above in
this Section 3.02(c) without regard to the immediately preceding proviso and (2)
if all or any portion of such Net Sale Proceeds are not required to be applied
on the 180th day referred to in clause (1) above because such amount is
contractually committed to be used and subsequent to such date such contract is
terminated or expires without such portion being so used, then such remaining
portion shall be applied within ten days of the date of such termination or
expiration as a mandatory repayment of principal of outstanding Loans as
provided in this Section 3.02(c) without regard to the immediately preceding
proviso.
(d) In addition to any other mandatory repayments pursuant to
this Section 3.02, on each Excess Cash Payment Date, an amount equal to 50% of
the Excess Cash Flow for the relevant Excess Cash Payment Period shall be
applied as a mandatory repayment of principal of outstanding Loans (and/or, if
the Total Commitment has not yet been terminated, as a mandatory reduction to
the Total Commitment) in accordance with the requirements of Sections 3.02(f)
and (g).
(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 3.02, within five days following
each date on or after the Effective Date upon which the Borrower or any of its
Wholly-Owned Subsidiaries receives any cash proceeds from any Recovery Event in
excess of $250,000 in the aggregate in any fiscal year of the Borrower from all
Recovery Events, an amount equal to 100% of the Net Insurance Proceeds of such
Recovery Event shall be applied as a mandatory repayment of principal of
outstanding Loans (and/or, if the Total Commitment has not yet been terminated,
as a mandatory reduction to the Total Commitment) in accordance with the
requirements of Sections 3.02(f) and (g), provided that, so long as no Default
or Event of Default then exists, such proceeds shall not be required to be so
applied on such date to the extent that the Borrower has delivered a certificate
to the Administrative Agent on or prior to such date stating that such proceeds
shall be used or shall be contractually committed to be used to replace or
restore any properties or assets in respect of which such proceeds were paid
within 180 days following the date of the receipt of such proceeds (which
certificate shall set forth the estimates of the proceeds to be so expended),
and provided further, that (1) if all or any portion of such proceeds not
required to be applied to the repayment of outstanding Loans (and/or as a
reduction to the Total Commitment) are not so used or contractually committed to
be used within 180 days after the date of the receipt of such proceeds, then
such remaining portion not used or contractually committed to be used shall be
applied on the date which is the 180th day after the date of the receipt of such
proceeds as a mandatory repayment of principal of outstanding Loans as provided
above in this Section 3.02(e) without regard to the immediately preceding
proviso and (2) if all or any portion of such proceeds are not required to be
applied on the 180th day referred to in clause (1) above because such amount is
contractually committed to be used and subsequent to such date such contract is
terminated or expires without such portion being so used, then such remaining
portion shall be applied within ten days of the date of such termination or
expiration as a mandatory repayment of principal of outstanding Loans as
provided in this Section 3.02(e) without regard to the immediately preceding
proviso.
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(f) With respect to each repayment of Loans required by this
Section 3.02, the Borrower may designate the Types of Loans which are to be
repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which made, provided that: (i) repayments of Eurodollar
Loans pursuant to this Section 3.02 may only be made on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans with Interest
Periods ending on such date of required repayment and all Base Rate Loans have
been paid in full; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Loans made pursuant to a Borrowing shall be applied pro rata among such
Loans. In the absence of a designation by the Borrower as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
(g) Each amount required to be applied to repay Loans pursuant
to Sections 3.02(b) through (e), inclusive, shall be applied to repay the
outstanding principal amount of the Loans (with a corresponding reduction to the
Total Commitment subject to the proviso of clause (ii) of Section 3.02(b)). To
the extent the amount of any mandatory repayment exceeds the aggregate principal
amount of Loans then outstanding, such excess shall be applied to reduce the
Total Commitment subject to the proviso of clause (ii) of Section 3.02(b).
(h) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, all then outstanding Loans shall be
repaid in full on the Maturity Date.
3.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or under any
Note shall be made to the Administrative Agent for the account of the Bank or
Banks entitled thereto not later than 12:30 p.m. (Eastern time) on the date when
due and shall be made in Dollars in immediately available funds at the Payment
Office of the Administrative Agent. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate immediately prior to such extension.
3.04 Net Payments.(a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 3.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Bank and any taxes
imposed solely on deposits or net assets of a Bank, in each case pursuant to the
laws of the jurisdiction in which it is organized or the jurisdiction in which
the principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded
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taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "NonExcluded Taxes"). Except as otherwise
provided in Section 3.04(b), if any NonExcluded Taxes are so levied or imposed,
the Borrower agrees to pay the full amount of such NonExcluded Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Agreement or under any Note, after withholding or deduction for or on
account of any NonExcluded Taxes, will not be less than the amount provided for
herein or in such Note. If any amounts are payable in respect of Non-Excluded
Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or measured by
the net income or net profits of such Bank pursuant to the laws of the
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which such
Bank is organized or in which the principal office or applicable lending office
of such Bank is located and for any withholding of taxes as such Bank shall
determine are payable by, or withheld from, such Bank, in respect of such
amounts so paid to or on behalf of such Bank pursuant to the preceding sentence
and in respect of any amounts paid to or on behalf of such Bank pursuant to this
sentence. The Borrower will furnish to the Administrative Agent within 45 days
after the date the payment of any NonExcluded Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any NonExcluded
Taxes so levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 12.04
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement and under any Note, or (ii)
if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit C (any such certificate, a "Section 3.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8 (or successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition, each
Bank agrees that from time to time after the Effective Date, when a lapse in
time or change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will, promptly upon request by the
Borrower, deliver to the Borrower and the Administrative Agent two new accurate
and complete original signed copies of Internal Revenue Service Form 4224 or
1001, or Form W-8 and a Section 3.04(b)(ii) Certificate, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or
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reduction in United States withholding tax with respect to payments under this
Agreement and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate
because a change in law or change in circumstance eliminates the availability to
the Bank of an exemption from United States withholding tax with respect to
payments to be made under this Agreement or any Note, in which case such Bank
shall not be required to deliver any such Form or Certificate pursuant to this
Section 3.04(b). Notwithstanding anything to the contrary contained in Section
3.04(a), but subject to Section 12.04(b), (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, Fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 3.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if (I) such Bank
has not provided to the Borrower the Internal Revenue Service Forms required to
be provided to the Borrower pursuant to this Section 3.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes.
SECTION 4. Conditions Precedent. The obligation of each Bank
to make Loans on the Effective Date is subject at the time of the making of such
Loans to the satisfaction of the following conditions:
4.01 Execution of Agreement; Notes. The Effective Date shall
have occurred and there shall have been delivered to the Agents for the account
of each of the Banks the appropriate Note executed by the Borrower, in each case
in the amount, maturity and otherwise as provided herein.
4.02 Officer's Certificate. On the Effective Date, the Agents
shall have received a certificate, dated the Effective Date and signed on behalf
of the Borrower by the President or any Vice President of the Borrower, stating
that all of the conditions in Sections 4.05, 4.06 and 5.01 have been satisfied
on such date.
4.03 Opinions of Counsel. On the Effective Date, the Agents
shall have received from (i) Dickstein, Shapiro, Xxxxx & Xxxxxxxx LLP, counsel
to the Credit Parties, an opinion addressed to the Agents and each of the Banks
and dated the Effective Date, covering the matters set forth in Exhibit D and
such other matters incident to the transactions contemplated herein as any Agent
may reasonably request and (ii) local counsel (reasonably satisfactory to the
Agents) opinions, each of which shall (x) be addressed to the Agents and each of
the Banks and dated the Effective Date, (y) be in form and substance reasonably
satisfactory to the Agents and (z) cover the perfection of the security
interests granted pursuant to the Security Documents and such other matters
incident to the transactions contemplated hereby as any Agent may reasonably
request.
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4.04 Corporate Documents; Proceedings; etc. (a) On the
Effective Date, the Agents shall have received a certificate from each Credit
Party, dated the Effective Date, signed by the President or any Vice President
of such Credit Party, and attested to by the Secretary or any Assistant
Secretary of such Credit Party, in the form of Exhibit E with appropriate
insertions, together with copies of the certificate of incorporation (or
equivalent organizational document) and by-laws of such Credit Party and the
resolutions of such Credit Party referred to in such certificate, and each such
certificate of incorporation and by-laws shall be in the form provided to the
Agents prior to the Effective Date or in such other form as is reasonably
acceptable to the Agents, and the foregoing resolutions shall be in form and
substance reasonably acceptable to the Agents.
(b) All corporate and legal proceedings shall be reasonably
satisfactory in form and substance to the Agents, and the Agents shall have
received all information and copies of all documents and papers, including
records of corporate proceedings, governmental approvals, good standing
certificates and bring-down telegrams or facsimiles, if any, which any Agent may
have requested in connection therewith, such documents and papers where
appropriate to be certified by proper corporate or governmental authorities.
4.05 Adverse Change, etc. On or prior to the Effective Date,
nothing shall have occurred (and the Agents shall have become aware of no facts
or conditions not previously known) which is reasonably likely to have a
material adverse effect on the rights or remedies of the Banks or the Agents, or
on the ability of the Borrower or its Subsidiaries to perform their obligations
to the Banks or which is reasonably likely to have a materially adverse effect
on the business, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
4.06 Litigation. On the Effective Date, no litigation by any
entity (private or governmental) shall be pending or threatened which is
reasonably likely to have a material adverse effect on the rights or remedies of
the Banks or the Agents, or on the ability of the Borrower or its Subsidiaries
to perform their obligations to the Banks or which is reasonably likely to have
a materially adverse effect on the business, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
4.07 Amended and Restated Pledge Agreement. On the Effective
Date, each Credit Party shall have duly authorized, executed and delivered the
Amended and Restated Pledge Agreement in the form of Exhibit F (as amended,
modified or supplemented from time to time, the "Amended and Restated Pledge
Agreement") and shall have delivered to the Collateral Agent, as Pledgee
thereunder, all of the Pledged Securities, if any, referred to therein then
owned by such Credit Party, (x) endorsed in blank in the case of promissory
notes constituting Pledged Securities and (y) together with executed and undated
stock powers in the case of capital stock constituting Pledged Securities.
4.08 Amended and Restated Security Agreement. On the Effective
Date, each Credit Party shall have duly authorized, executed and delivered the
Amended and Restated Security Agreement in the form of Exhibit G (as modified,
supplemented or amended from time to
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time, the "Amended and Restated Security Agreement") covering all of such Credit
Party's present and future Amended and Restated Security Agreement Collateral.
4.09 Subsidiaries Guaranty. On the Effective Date, each
Subsidiary Guarantor shall have duly authorized, executed and delivered the
Subsidiaries Guaranty in the form of Exhibit H (as amended, modified or
supplemented from time to time, the "Subsidiaries Guaranty").
4.10 Amended and Restated Mortgages; Title Insurance; etc. On
the Effective Date, the Collateral Agent shall have received:
(i) fully executed counterparts of the Amended and Restated
Mortgages, in form and substance reasonably satisfactory to the Agents,
which Amended and Restated Mortgages shall cover the Mortgaged Properties
owned by the Credit Parties on the Effective Date as designated on Schedule
III, together with evidence that counterparts of such Amended and Restated
Mortgages and amendments have been delivered to the title insurance company
insuring the Lien of such Amended and Restated Mortgages for recording in
all places to the extent necessary or, in the reasonable opinion of the
Collateral Agent, desirable, to effectively create a valid and enforceable
first priority mortgage lien on each such Mortgaged Property in favor of
the Collateral Agent (or such other trustee as may be required or desired
under local law) for the benefit of the Secured Creditors; and
(ii) endorsements, in form and substance satisfactory to the
Agents, in respect of the Exisiting Mortgage Policies and issued by a title
insurer reasonably satisfactory to the Agents (the "Endorsements") assuring
the Collateral Agent that the Amended and Restated Mortgages (as amended)
on such Mortgaged Properties are valid and enforceable first priority
mortgage liens on the respective Mortgaged Properties, free and clear of
all defects and encumbrances except Permitted Encumbrances and such
Endorsements shall otherwise be in form and substance reasonably
satisfactory to the Agents.
4.11 Solvency Certificate. On the Effective Date, the Borrower
shall have delivered to the Agents a solvency certificate from the Chief
Financial Officer of the Borrower in the form of Exhibit I.
4.12 Fees, etc. On the Effective Date, the Borrower shall have
paid to the Agents and each Bank all costs, fees and expenses (including,
without limitation, legal fees and expenses) payable to the Agents and such Bank
to the extent then due.
4.13 Non-U.S. Assets; Financial Statements. On the Effective
Date, the Borrower shall have delivered to the Agents:
(i) Schedule IV showing the book value of all receivables,
inventory and fixed assets of the Borrower and its Subsidiaries located or
arising from operations outside of the United States; and
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(ii) (x) the consolidated and consolidating balance sheets
of the Borrower and its Subsidiaries as at June 30, 1999 and June 30, 1998,
together with (y) the related consolidated and consolidating statements of
income, showing income by division, and the related consolidated and
consolidating statements of retained earnings and statement of cash flows,
in each case for the nine month period ending June 30, 1999 (and setting
forth comparative figures for the related periods in the prior fiscal year
of the Borrower).
SECTION 5. Conditions Precedent to All Credit Events. The
obligation of each Bank to make Loans (including Loans made on the Effective
Date), is subject, at the time of each such Credit Event (except as hereinafter
indicated), to the satisfaction of the following conditions:
5.01 No Default; Representations and Warranties. At the time
of each such Credit Event and also after giving effect thereto (i) there shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
5.02 Notice of Borrowing. Prior to the making of each Loan,
the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a).
5.03 Total Unutilized Revolving Loan Commitment Under the
Existing Credit Agreement. At the time of the making of each Loan, the Total
Unutilized Revolving Loan Commitment, as defined in the Existing Credit
Agreement, shall be equal to zero.
The acceptance of the proceeds of each Loan shall constitute a
representation and warranty by the Borrower to the Agents and each of the Banks
that all the conditions specified in Section 4 (with respect to Credit Events on
the Effective Date) and in this Section 5 (with respect to Credit Events on and
after the Effective Date) and applicable to such Credit Event exist as of that
time. All of the Notes, certificates, legal opinions and other documents and
papers referred to in Section 4 and in this Section 5, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the account of each of the Banks and, except for the Notes, in sufficient
counterparts or copies for each of the Banks and shall be in form and substance
reasonably satisfactory to the Agents and the Required Banks.
SECTION 6. Representations, Warranties and Agreements. In
order to induce the Banks to enter into this Agreement and to make the Loans,
the Borrower makes the following representations, warranties and agreements, all
of which shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans, with the occurrence of each Credit Event on
or after the Effective Date being deemed to constitute a representation and
warranty that the matters specified in this Section 6 are true and correct in
all material respects on and as of the Effective Date and on the date of each
such Credit Event (it being understood and agreed that
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any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct only as of such specified date).
6.01 Corporate and Other Status. Each Credit Party and each of
its Subsidiaries (i) is a duly organized and validly existing corporation or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate or partnership power
and authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly qualified
and is authorized to do business and is in good standing in each jurisdiction
where the ownership, leasing or operation of its property or the conduct of its
business requires such qualifications except for failures to be so qualified
which, individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
6.02 Corporate and Other Power and Authority. Each Credit
Party has the corporate or partnership power and authority to execute, deliver
and perform the terms and provisions of each of the Credit Documents to which it
is party and has taken all necessary corporate or partnership action to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of the Borrower or
any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument, to which the Borrower or any of its Subsidiaries is a
party or by which it or any of its property or assets is bound or to which it
may be subject or (iii) will violate any provision of the certificate of
incorporation, by-laws or partnership agreement (or equivalent organizational
documents) of the Borrower or any of its Subsidiaries.
6.04 Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for those that have otherwise been obtained or made on or prior to the
Effective Date and which remain in full force and effect on the Effective Date,
or to the extent not required to be obtained or made on or prior to the
Effective Date, as will be obtained or made on or prior to the required date
therefor), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Credit Document or (ii)
the legality, validity, binding effect or enforceability of any such Credit
-19-
Document.
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheet of the
Borrower and its Subsidiaries at September 30, 1998 and June 30, 1999 and the
related consolidated statements of operations, cash flows and shareholders'
equity of the Borrower and its Subsidiaries for the fiscal year or nine-month
period ended on such dates, respectively, copies of which have been furnished to
the Banks prior to the Effective Date, present fairly the financial position of
the Borrower and its Subsidiaries at the date of such balance sheets and the
results of the operations of the Borrower and its Subsidiaries for the periods
covered thereby. Except as previously disclosed in writing to the agents under
the Existing Credit Agreement, since September 30, 1998, there has been no
material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
(b) (i) On and as of the Effective Date, on a pro forma basis,
after giving effect to the execution, delivery and performance of this Agreement
and the other Credit Documents, and the consummation of the transactions
contemplated herein and therein and to all Indebtedness incurred and to be
incurred, and Liens created by the Credit Parties in connection therewith, (a)
the sum of the assets, at a fair valuation, of each of the Borrower on a stand
alone basis and of the Borrower and its Subsidiaries taken as a whole will
exceed its debts; (b) each of the Borrower on a stand alone basis and the
Borrower and its Subsidiaries taken as a whole has not incurred and does not
intend to incur, and does not believe that they will incur, debts beyond their
ability to pay such debts as such debts mature; and (c) each of the Borrower on
a stand alone basis and the Borrower and its Subsidiaries taken as a whole will
have sufficient capital with which to conduct its business. For purposes of this
Section 6.05(b), "debt" means any liability on a claim, and "claim" means (i)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured or (ii) right to an
equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
(c) Except as fully disclosed in the financial statements
delivered pursuant to Section 6.05(a) there were as of the Effective Date no
liabilities or obligations with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in aggregate,
could reasonably be expected to have a material and adverse effect on the
Borrower and its Subsidiaries taken as a whole. As of the Effective Date, the
Borrower does not know of any basis for the assertion against it or any of its
Subsidiaries of any liability or obligation of any nature whatsoever that is not
fully disclosed in the financial statements delivered pursuant to Section
6.05(a) which, either individually or in the aggregate, could reasonably be
expected to be material to the Borrower or the Borrower and its Subsidiaries
taken as a whole.
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(d) On and as of the Effective Date, the Projections delivered
to the Agents and the Banks prior to the Effective Date have been prepared in
good faith and are based on reasonable assumptions. On the Effective Date, the
Borrower believes that the Projections are reasonable, it being understood that
the Projections include assumptions as to future events that are not to be
viewed as facts and that actual results may differ from the projected results
and such differences may be material.
6.06 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of the Borrower, threatened (i) with respect
to any Credit Document or (ii) that are reasonably likely to materially and
adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower or the Borrower
and its Subsidiaries taken as a whole.
6.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by any Credit Party in writing to any Agent or any
Bank (including, without limitation, all information contained in the Credit
Documents) for purposes of or in connection with this Agreement, the other
Credit Documents or any transaction contemplated herein or therein is, and all
other such factual information hereafter furnished by or on behalf of any Credit
Party in writing to any Agent or any Bank will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such
information not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
6.08 Use of Proceeds; Margin Regulations. (a) The proceeds of
all Loans will be used (i) for the Borrower's and its Subsidiaries' general
corporate and working capital purposes and (ii) to make the scheduled repayment
of loans under the Existing Credit Agreement due on August 31, 1999.
(b) No part of any Credit Event (or the proceeds thereof) will
be used to purchase or carry any Margin Stock or to extend credit for the
purpose of purchasing or carrying any Margin Stock. Neither the making of any
Loan nor the use of the proceeds thereof nor the occurrence of any other Credit
Event will violate or be inconsistent with the provisions of Regulation T, U or
X of the Board of Governors of the Federal Reserve System.
6.09 Tax Returns and Payments. Each of the Borrower and each
of its Subsidiaries has filed all federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all material taxes and assessments payable by it which have become due,
except for those contested in good faith and adequately disclosed and fully
provided for on the financial statements of the Borrower and its Subsidiaries in
accordance with generally accepted accounting principles. The Borrower and each
of its Subsidiaries have at all times paid, or have provided adequate reserves
(in the good faith judgment of the management of the Borrower) for the payment
of, all federal, state and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to date. There is no material action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Borrower or any of its Subsidiaries, threatened by any
authority regarding any taxes relating to the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries has entered into
an
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agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of the Borrower or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of the
Borrower or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations.
6.10 Compliance with ERISA. (i) Each Plan and to the knowledge
of the Borrower each Multiemployer Plan (and each related trust, insurance
contract or fund) is in substantial compliance with its terms and with all
applicable laws, including, without limitation, ERISA and the Code; each Plan
and to the knowledge of the Borrower each Multiemployer Plan (and each related
trust, if any) which is intended to be qualified under Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service to
the effect that it meets the requirements of Sections 401(a) and 501(a) of the
Code; no Reportable Event has occurred with respect to a Plan; to the knowledge
of the Borrower, no Multiemployer Plan is insolvent or in reorganization; no
Plan has an Unfunded Current Liability; no Plan and to the knowledge of the
Borrower no Multiemployer Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
all material contributions required to be made by the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate with respect to a Plan or a Multiemployer
Plan have been timely made; neither the Borrower nor any Subsidiary of the
Borrower nor any ERISA Affiliate has incurred any material liability (including
any indirect or secondary liability) to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 4062, 4063, 4064 or 4069 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or expects to incur any such material
liability under any of the foregoing sections with respect to any Plan; to the
knowledge of the Borrower and its Subsidiaries, no condition exists which
presents a material risk to the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate of incurring a material liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; no proceedings have
been instituted to terminate or appoint a trustee to administer any Plan which
is subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending or, to
the knowledge of the Borrower and its Subsidiaries, threatened; using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of the Borrower and its
Subsidiaries and its ERISA Affiliates to all Multiemployer Plans in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of this Agreement and with respect to
fiscal years ended prior to the date of each Credit Event would not be material;
each group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
has at all times been operated in substantial compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien
imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan; neither the Borrower nor any Subsidiary of the Borrower nor any
ERISA Affiliate has incurred any material
-22-
liability (including any indirect or secondary liability) under Sections 515,
4201, 4202 or 4212 of ERISA with respect to any Multiemployer Plan; to the
knowledge of the Borrower, no condition exists which presents a material risk to
the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate of
incurring a material liability to or on account of a Multiemployer Plan pursuant
to the foregoing provisions of ERISA; to the knowledge of the Borrower and its
Subsidiaries, no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any
Multiemployer Plan (other than routine claims for benefits) that could
reasonably be expected to be material to the Borrower or the Borrower and its
Subsidiaries taken as a whole is pending or threatened; and the Borrower and its
Subsidiaries do not maintain or contribute to any employee welfare benefit plan
(as defined in Section 3(1) of ERISA), which provides benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or any Plan or Multiemployer Plan, the obligations with respect to which
could reasonably be expected to have a material adverse effect on the ability of
the Borrower or any of its Subsidiaries to perform their respective obligations
under the Credit Documents.
(ii) To the knowledge of the Borrower and its Subsidiaries,
each Foreign Pension Plan has been maintained in substantial compliance with its
terms and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities. All material contributions required to
be made with respect to a Foreign Pension Plan have been timely made. Neither
the Borrower nor any of its Subsidiaries has incurred any material obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan.
The Borrower and its Subsidiaries do not maintain or contribute to any Foreign
Pension Plan the obligations with respect to which could reasonably be expected
to have a material adverse effect on the ability of the Borrower or the Borrower
and its Subsidiaries taken as a whole to perform their obligations under the
Credit Documents.
6.11 The Security Documents. (a) The provisions of the Amended
and Restated Security Agreement are effective to create in favor of the
Collateral Agent for the benefit of the Secured Creditors a legal, valid and
enforceable security interest in all right, title and interest of the Credit
Parties party thereto in the Amended and Restated Security Agreement Collateral
described therein, and the Collateral Agent, for the benefit of the Secured
Creditors, has a fully perfected lien on, and security interest in, all right,
title and interest in all of the Amended and Restated Security Agreement
Collateral described therein, subject to no other Liens other than Permitted
Liens. The recordation of the Assignment of Security Interest in U.S. Patents
and Trademarks in the form attached to the Amended and Restated Security
Agreement in the United States Patent and Trademark Office together with filings
on Form UCC-1 made pursuant to the Amended and Restated Security Agreement will
create, as may be perfected by such filing and recordation, a perfected security
interest granted to the Collateral Agent in the trademarks and patents covered
by the Amended and Restated Security Agreement and the recordation of the
Assignment of Security Interest in U.S. Copyrights in the form attached to the
Amended and Restated Security Agreement with the United States Copyright Office
together with filings on Form UCC-1 made pursuant to the Amended and Restated
Security Agreement will create, as may be perfected by such filing and
recordation, a perfected security interest
-23-
granted to the Collateral Agent in the copyrights covered by the Amended and
Restated Security Agreement.
(b) The security interests created in favor of the Collateral
Agent, as Pledgee, for the benefit of the Secured Creditors, under the Amended
and Restated Pledge Agreement constitute first priority perfected security
interests in the Pledged Securities described in the Amended and Restated Pledge
Agreement, subject to no security interests of any other Person. No filings or
recordings are required in order to perfect (or maintain the perfection or
priority of) the security interests created in the Pledged Securities under the
Amended and Restated Pledge Agreement.
(c) The Amended and Restated Mortgages create, for the
obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and mortgage lien on all of the Mortgaged Properties in
favor of the Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured Creditors, superior to
and prior to the rights of all third persons (except that the security interest
and mortgage lien created in the Mortgaged Properties may be subject to the
Permitted Encumbrances related thereto) and subject to no other Liens (other
than Liens permitted under Section 9.01 of the Existing Credit Agreement).
Schedule III contains a true and complete list of each parcel of Real Property
owned or leased by the Borrower and its Subsidiaries on the Effective Date, and
the type of interest therein held by the Borrower or such Subsidiary. The
Borrower and each of its Subsidiaries have (i) good and marketable title to all
fee-owned Real Property free and clear of all Liens except those described in
the first sentence of this subsection (c) and (ii) valid leasehold title to all
Leaseholds.
6.12 Properties. The Borrower and each of its Subsidiaries
have good and marketable title to all material properties owned by them,
including all material property reflected in the balance sheets referred to in
Section 6.05(a), free and clear of all Liens, other than Liens permitted by
Section 9.01 of the Existing Credit Agreement.
6.13 Capitalization. On the Effective Date, the authorized
capital stock of the Borrower shall consist of (i) 100,000,000 shares of common
stock, $.01 par value per share, of which 14,262,000 shares of such common stock
are issued and outstanding and (ii) 1,500,000 shares of preferred stock, $.01
par value per value, none of which shares of such preferred stock are issued or
outstanding. All outstanding shares of capital stock of the Borrower have been
duly and validly issued, are fully paid and nonassessable. Except for options or
warrants to purchase shares of common stock of the Borrower held by employees
and directors of the Borrower or any of its Subsidiaries, as of the Effective
Date, the Borrower does not have outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any rights to subscribe for or
to purchase, or any options for the purchase of, or any agreement providing for
the issuance (contingent or otherwise) of, or any calls, commitments or claims
of any character relating to, its capital stock.
6.14 Subsidiaries. As of the Effective Date, the Borrower has
no Subsidiaries other than those Subsidiaries listed on Schedule V. Schedule V
correctly sets forth, as of the
-24-
Effective Date, the percentage ownership (direct or indirect) of the Borrower in
each class of capital stock or other equity of each of its Subsidiaries and also
identifies the direct owner thereof.
6.15 Compliance with Statutes, etc. Each of the Borrower and
each of its Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
6.16 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.17 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.18 Environmental Matters. (a) The Borrower and each of its
Subsidiaries have complied with, and on the date of such Credit Event are in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. There are no pending or, to the
best knowledge of the Borrower, threatened Environmental Claims against the
Borrower or any of its Subsidiaries (including any such claim arising out of the
ownership or operation by the Borrower or any of its Subsidiaries of any Real
Property no longer owned or operated by the Borrower or any of its Subsidiaries)
or any Real Property owned or operated by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences with
respect to any Real Property owned or operated by the Borrower or any of its
Subsidiaries (including any Real Property formerly owned or operated by the
Borrower or any of its Subsidiaries but no longer owned or operated by the
Borrower or any of its Subsidiaries) or, to the best knowledge of the Borrower,
any property adjoining or adjacent to any such Real Property that could
reasonably be expected (i) to form the basis of an Environmental Claim against
the Borrower or any of its Subsidiaries or any Real Property owned or operated
by the Borrower or any of its Subsidiaries, or (ii) to cause any Real Property
owned or operated by the Borrower or any of its Subsidiaries to be subject to
any restrictions on the ownership, occupancy or transferability of such Real
Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated,
used, treated or stored on, or transported to or from, any Real Property owned
or operated by the Borrower or any of its Subsidiaries where such generation,
use, treatment or storage has violated or could reasonably be expected to
violate any Environmental Law. Hazardous Materials have not at any time been
Released on or from any Real Property owned or operated by the Borrower or any
of
-25-
its Subsidiaries where such Release has violated or could reasonably be expected
to violate any applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section
6.18, the representations made in this Section 6.18 shall not be untrue unless
the aggregate effect of all violations, claims, restrictions, failures and
noncompliances of the types described above could reasonably be expected to have
a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole.
6.19 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a material adverse effect on the Borrower or the Borrower and
its Subsidiaries taken as a whole. There is (i) no unfair labor practice
complaint pending against the Borrower or any of its Subsidiaries or, to the
best knowledge of the Borrower or any of its Subsidiaries, threatened against
any of them, before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Borrower or any of its Subsidiaries or, to
the best knowledge of the Borrower, threatened against any of them, (ii) no
strike, labor dispute, slowdown or stoppage pending against the Borrower or any
of its Subsidiaries or, to the best knowledge of the Borrower or any of its
Subsidiaries, threatened against the Borrower or any of its Subsidiaries and
(iii) no union representation question exists with respect to the employees of
the Borrower or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower or any of its Subsidiaries
and its Subsidiaries taken as a whole.
6.20 Patents, Licenses, Franchises and Formulas. Each of the
Borrower and each of its Subsidiaries owns all the patents, trademarks, permits,
service marks, trade names, copyrights, licenses, franchises, proprietary
information (including but not limited to rights in computer programs and
databases) and formulas, or rights with respect to the foregoing, and has
obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others which, or the failure to obtain which, as the case may
be, could reasonably be expected to result in a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
6.21 Indebtedness. Schedule VI sets forth a true and complete
list of all Indebtedness (including Contingent Obligations) of the Borrower and
its Subsidiaries as of the Effective Date (excluding the Loans and Indebtedness
permitted under Section 9.04(iii) of the Existing Credit Agreement, the
"Existing Indebtedness"), in each case showing the name of the respective
borrower and any Credit Party or any of its Subsidiaries which directly or
indirectly guaranteed such debt.
SECTION 7. Affirmative Covenants. The Borrower hereby
covenants and agrees that on and after the Effective Date and until the Total
Commitment has terminated and the Loans
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and Notes, together with interest, Fees and all other Obligations incurred
hereunder and thereunder, are paid in full:
7.01 Incorporation by Reference. The Borrower will, and will
cause each of its Subsidiaries to, comply with each of the covenants set forth
in Section 8 of the Existing Credit Agreement (without giving effect to any
amendments, modifications or supplements thereto (including any amendments,
modifications or supplements to the definitions in the Existing Credit Agreement
applicable to such covenants) entered into after the Effective Date unless such
amendments, modifications or supplements are also agreed to by the Required
Banks hereunder) to the extent such covenants are applicable to the Borrower or
such Subsidiary, each of which covenants (together with all definitions in the
Existing Credit Agreement applicable to such covenants) is incorporated herein
by reference as if fully set forth herein in its entirety.
7.02 Additional Information Covenants. The Borrower will
furnish to each Bank:
(a) Weekly Financial Statements. Within two Business Days
after the end of each calendar week, (i) projections of cash flows for the
period beginning with the end of such calendar week through and including the
Maturity Date, (ii) actual cash flows for each of the four weeks immediately
preceding the end of such calendar week and (iii) backlogs and shipments by
product line as of the end of such calendar week.
(b) Monthly Financial Statements. Within ten Business Days
after the end of each calendar month, the consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of such month, the
related consolidated and consolidating statements of income, showing income by
division, and the related consolidated and consolidating statements of retained
earnings and statement of cash flows for such month.
SECTION 8. Negative Covenants. The Borrower hereby covenants
and agrees that on and after the Effective Date and until the Total Commitment
has terminated and the Loans and Notes, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
8.01 Incorporation by Reference. The Borrower will, and will
cause each of its Subsidiaries to, comply with each of the covenants set forth
in Section 9 of the Existing Credit Agreement (without giving effect to any
amendments, modifications or supplements thereto (including any amendments,
modifications or supplements to the definitions in the Existing Credit Agreement
applicable to such covenants) entered into after the Effective Date unless such
amendments, modifications or supplements are also agreed to by the Required
Banks hereunder) to the extent such covenants are applicable to the Borrower or
such Subsidiary, each of which covenants (together with all definitions in the
Existing Credit Agreement applicable to such covenants) is incorporated herein
by reference as if fully set forth herein in its entirety.
8.02 Bank Accounts. The Borrower will not, and will not permit
any of its Subsidiaries to, open any bank accounts without the prior written
consent of the Administrative Agent; provided, however, the Borrower or any of
its Subsidiaries may, in the aggregate, open up to two bank accounts in
connection with the Snorkel Revolver.
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SECTION 9. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of any Loan or any Note, or (ii) default, and such
default shall continue for more than two Business Days, in the payment when due
of any interest on any Loan or Note or any Fees or any other amounts owing
hereunder or thereunder; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered to any Agent or any Bank pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
9.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(f)(i), 8.08 or 8.11 of the Existing Credit Agreement or Section 9
of the Existing Credit Agreement or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement or any other Credit Document (other than those set forth in Sections
9.01 and 9.02) and such default shall continue unremedied for a period of 30
days after written notice thereof to the defaulting party by any Agent or the
Required Banks; or
9.04 Default Under Other Agreements. (i) The Borrower or any
of its Subsidiaries shall (x) default in any payment of any Indebtedness (other
than the Notes) beyond the period of grace or cure, if any, provided in the
instrument or agreement under which such Indebtedness was created or (y) default
in the observance or performance of any agreement or condition relating to any
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required, but beyond the period of grace or cure, if
any, provided in the instrument or agreement under which such Indebtedness was
created), any such Indebtedness to become due prior to its stated maturity, or
(ii) any Indebtedness (other than the Notes) of the Borrower or any of its
Subsidiaries shall be declared to be (or shall become) due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof, provided that it shall not be a Default or
an Event of Default under this Section 9.04 unless the aggregate principal
amount of all Indebtedness as described in preceding clauses (i) and (ii) is at
least $2,000,000; or
9.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Borrower or any of its Subsidiaries, and the petition is not
controverted within 15 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Subsidiaries, or the Borrower or any of its
Subsidiaries commences any other proceeding under any reorganization,
arrangement,
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adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect relating to
the Borrower or any of its Subsidiaries, or there is commenced against the
Borrower or any of its Subsidiaries any such proceeding which remains
undismissed for a period of 60 days, or the Borrower or any of its Subsidiaries
is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or the Borrower or any of its
Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the Borrower or any of its Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by the
Borrower or any of its Subsidiaries for the purpose of effecting any of the
foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, any Plan or
Multiemployer Plan which is subject to Title IV of ERISA shall have had or is
likely to have a trustee appointed to administer such Plan or Multiemployer
Plan, any Plan or Multiemployer Plan which is subject to Title IV of ERISA is,
shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan or Multiemployer Plan shall have
an Unfunded Current Liability, a contribution required to be made with respect
to a Plan, a Multiemployer Plan or a Foreign Pension Plan has not been timely
made, the Borrower or any Subsidiary of the Borrower or any ERISA Affiliate has
incurred or is likely to incur any liability to or on account of a Plan or
Multiemployer Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code or on account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B(a) of the Code, or the
Borrower or any Subsidiary of the Borrower has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) that provide benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or Plans or
Foreign Pension Plans; (b) there shall result from any such event or events the
imposition of a lien, the granting of a security interest, or a liability or a
material risk of incurring a liability; and (c) such lien, security interest or
liability, individually, and/or in the aggregate, has had, or could reasonably
be expected to have, a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower or the Borrower and its Subsidiaries taken as a whole; or
9.07 Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral, in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons (except as permitted by
Section 9.01 of the Existing Credit Agreement), and subject to no other Liens
(except as permitted by Section 9.01 of the Existing Credit Agreement); or
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9.08 Subsidiaries Guaranty. At any time after the execution
and delivery thereof, the Subsidiaries Guaranty or any provision thereof shall
cease to be in full force or effect as to any Subsidiary Guarantor, or any
Subsidiary Guarantor or any Person acting by or on behalf of such Subsidiary
Guarantor shall deny or disaffirm such Subsidiary Guarantor's obligations under
the Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
9.09 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments exceeds $2,000,000; or
9.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, upon the written request of
the Required Banks, shall by written notice to the Borrower, take any or all of
the following actions, without prejudice to the rights of any Agent, any Bank or
the holder of any Note to enforce its claims against any Credit Party (provided,
that, if an Event of Default specified in Section 9.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice
by the Administrative Agent as specified in clauses (i) and (ii) below shall
occur automatically without the giving of any such notice): (i) declare the
Total Commitment terminated, whereupon all Commitments of each Bank shall
forthwith terminate immediately and any Commitment Commission shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans and the Notes and
all Obligations owing hereunder and thereunder to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Credit Party; and
(iii) enforce, as Collateral Agent, all of the Liens and security interests
created pursuant to the Security Documents.
SECTION 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Adjusted Consolidated Cash Income" shall mean, for any
period, Consolidated Net Income for such period plus, without duplication, the
sum of the amount of all net non-cash charges (including, without limitation,
depreciation, amortization, deferred tax expense, non-cash interest expense) and
net non-cash losses which were included in arriving at Consolidated Net Income
for such period less the sum of the amount of all net non-cash gains which were
included in arriving at Consolidated Net Income for such period.
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"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities at such time.
"Adjusted Total Commitment" shall mean at any time the Total
Commitment less the aggregate Commitments of all Defaulting Banks.
"Administrative Agent" shall mean First Union Investors, Inc.,
in its capacity as Administrative Agent for the Banks hereunder, and shall
include any successor to the Administrative Agent appointed pursuant to Section
11.09.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" shall mean and include the Administrative Agent and
the Syndication Agent.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended, renewed, refinanced or replaced from time to time.
"Amended and Restated Mortgage" shall mean each mortgage, deed
to secure debt or deed of trust pursuant to which any Credit Party shall have
granted to the Collateral Agent a mortgage lien on such Credit Party's Mortgaged
Property.
"Amended and Restated Pledge Agreement" shall have the meaning
provided in Section 4.07.
"Amended and Restated Pledge Agreement Collateral" shall mean
all "Collateral" as defined in the Amended and Restated Pledge Agreement.
"Amended and Restated Security Agreement" shall have the
meaning provided in Section 4.08.
"Amended and Restated Security Agreement Collateral" shall
mean all "Collateral" as defined in the Amended and Restated Security Agreement.
"Applicable Base Rate Margin" from and after the first day of
any Applicable Pricing Period (the "Start Date") to and including the last day
of such Applicable Pricing Period (the "End Date"), shall mean the respective
percentage per annum set forth in clause (A) - (F) below if, but only if, as of
the last day of the most recent fiscal quarter of the Borrower ended immediately
prior to such Start Date (the "Test Date") the condition in clause (A) - (F)
below is met:
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(A) 2.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 3.50:1.0; or
(B) 1.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.50:1.0 but greater than 3.00:1.0; or
(C) 1.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.00:1.0 but greater than 2.50:1.0; or
(D) 1.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.50:1.0 but greater than 2.00:1.0; or
(E) 1.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.0 but greater than 1.50:1.0; or
(F) 0.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.5:1.0.
Notwithstanding anything to the contrary contained above in
this definition, (a) for the period from the Effective Date to the date of
delivery of the financial statements and related certificates pursuant to
Section 8.01(b) of the Existing Credit Agreement in respect of the Borrower's
fiscal year ending on September 30, 1999, and (b) at any time when any Default
or Event of Default exists, the Applicable Base Rate Margin shall be 2.000%.
"Applicable Commitment Commission Percentage" from and after
any Start Date to and including the corresponding End Date, shall mean the
respective percentage per annum set forth in clause (A) or (B) below if, but
only if, as of the Test Date for such Start Date the condition set forth in
clause (A) or (B) below is met:
(A) 0.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 1.50:1.00; or
(B) 0.375% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.50:1.00.
Notwithstanding anything to the contrary contained above in
this definition, (a) for the period from the Effective Date to the date of
delivery of the financial statements and related certificates pursuant to
Section 8.01(b) of the Existing Credit Agreement in respect of the
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Borrower's fiscal year ending on September 30, 1999 and (b) at any time when any
Default or Event of Default exists, the Applicable Commitment Commission
Percentage shall be 0.500%.
"Applicable Eurodollar Margin" from and after any Start Date
to and including the corresponding End Date, shall mean the respective
percentage per annum set forth in clause (A)-(F) below if, but only if, as of
the Test Date for such Start Date the condition in clause (A)-(F) below is met:
(A) 3.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be greater than 3.50:1.0; or
(B) 2.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.50:1.0 but greater than 3.00:1.0; or
(C) 2.500% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 3.00:1.0 but greater than 2.50:1.0; or
(D) 2.250% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.50:1.0 but greater than 2.00:1.0; or
(E) 2.000% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 2.00:1.0 but greater than 1.50:1.0; or
(F) 1.750% if, but only if, as of the Test Date for such Start
Date, the Leverage Ratio for the Test Period ended on such Test Date
shall be equal to or less than 1.5:1.0.
Notwithstanding anything to the contrary contained above in
this definition, (a) for the period from the Effective Date to the date of
delivery of the financial statements and related certificates pursuant to
Section 8.01(b) of the Existing Credit Agreement in respect of the Borrower's
fiscal year ending on September 30, 1999 and (b) at any time when any Default or
Event of Default exists, the Applicable Eurodollar Margin shall be 3.000%.
"Applicable Pricing Period" shall mean each period which shall
commence on a date five Business Days after the date on which the financial
statements are delivered pursuant to Section 8.01(a) or (b) of the Existing
Credit Agreement and which shall end on the earlier of (i) the date five
Business Days after the date of actual delivery of the next financial statements
pursuant to Section 8.01(a) or (b) of the Existing Credit Agreement and (ii) the
latest date on which the next financial statements are required to be delivered
pursuant to Section 8.01(a) or (b) of the Existing Credit Agreement if such
financial statements have not been delivered on or prior to such date.
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"Asset Sale" shall mean any sale, transfer or other
disposition by the Borrower or any of its Subsidiaries to any Person (including
by way of redemption by such Person) other than to the Borrower or a
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities of, or equity interests in,
another Person) of the Borrower or any of its Subsidiaries, other than any sale,
transfer or disposition permitted by Sections 9.02(ii), (iii), (v), (vii), (xi)
and (xii) of the Existing Credit Agreement.
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit J (appropriately
completed).
"Bank" shall mean each Person listed on Schedule I, as well as
any Person which becomes a "Bank" hereunder pursuant to Section 1.13 or
12.04(b).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Bank to make available its portion of any
Borrowing or (ii) a Bank having notified in writing the Borrower and/or the
Administrative Agent that such Bank does not intend to comply with its
obligations under Section 1.01 or 1.04, in the case of either clause (i) or (ii)
as a result of any takeover or control (including, without limitation, as a
result of the occurrence of any event of the type described in Section 9.05 with
respect to such Bank) of such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" at any time shall mean the higher of (i) 1/2 of 1%
in excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the Borrower at the time of the incurrence thereof or
conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrower's Account" shall mean a deposit account of the
Borrower maintained with the Payment Office of the Administrative Agent, which
is identified by the Borrower in the most recent Notice of Account Designation,
substantially in the form of Exhibit K hereto delivered by the Borrower to the
Administrative Agent as the Borrower's Account for receipt of proceeds of Loans
to the Borrower.
"Borrowing" shall mean the borrowing of one Type of Loan from
all the Banks on a given date (or resulting from a conversion or conversions on
such date) having in the case of Eurodollar Loans the same Interest Period,
provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of the related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City, New York or Charlotte, North Carolina a legal holiday
or a day on which banking institutions are authorized or required by law or
other government action to close and (ii) with respect to all
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notices and determinations in connection with, and payments of principal and
interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) above and which is also a day for trading by and between banks in the
London interbank Eurodollar market.
"Calculation Period" shall mean the period of four consecutive
fiscal quarters of the Borrower last ended before the date of the respective
Permitted Acquisition which requires calculations to be made on a Pro Forma
Basis.
"Capital Expenditures" shall mean, with respect to any Person,
all expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles and, without duplication, the amount of
Capitalized Lease Obligations incurred by such Person.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under generally accepted accounting principles, are or
will be required to be capitalized on the books of such Person, in each case
taken at the amount thereof accounted for as indebtedness in accordance with
such principles.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in support thereof) having maturities
of not more than one year from the date of acquisition, (ii) Dollar denominated
time deposits and certificates of deposit of any commercial bank having, or
which is the principal banking subsidiary of a bank holding company having, a
long-term unsecured debt rating of at least "A" or the equivalent thereof from
Standard & Poor's Ratings Services or "A2" or the equivalent thereof from
Xxxxx'x Investors Service, Inc. with maturities of not more than one year from
the date of acquisition by such Person, (iii) repurchase obligations with a term
of not more than seven days for underlying securities of the types described in
clause (i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Person incorporated in
the United States rated at least A-1 or the equivalent thereof by Standard &
Poor's Ratings Services or at least P1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. and in each case maturing not more than 270 days after
the date of acquisition by such Person, (v) asset-backed certificates of
participation representing a fractional undivided interest in the assets of a
trust, which certificates are rated at least A-1 or the equivalent thereof by
Standard & Poor's Rating Services or at least P-1 or the equivalent thereof by
Xxxxx'x Investors Service, Inc., and (vi) investments in money market funds
substantially all of whose assets are comprised of securities of the types
described in clauses (i) through (v) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i) any Person or "group"
(within the meaning of Rules 13d-3 or 13d-5 under the Securities Exchange Act
(as in effect on the Effective Date)), other than the Permitted Holders, shall
(A) have acquired beneficial ownership of 25% or more on a fully diluted basis
of the voting and/or economic interest in the Borrower's capital stock or (B)
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have obtained the power (whether or not exercised) to elect a majority of the
Borrower's directors or (ii) the Board of Directors of the Borrower shall cease
to consist of a majority of Continuing Directors.
"Co-Arrangers" shall mean each of First Union Capital Markets
Corp. and MSSF in their respective capacities as Co-Arrangers. The Co-Arrangers
shall incur no liabilities and shall have no duties or responsibilities under
this Agreement or any other Credit Document in such capacity.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal) with respect to which any security interests have been granted (or
purport to be granted) pursuant to any Security Document, including, without
limitation, all Amended and Restated Pledge Agreement Collateral, all Amended
and Restated Security Agreement Collateral and the Mortgaged Properties.
"Collateral Agent" shall mean First Union National Bank acting
as collateral agent for the Secured Creditors pursuant to the Security
Documents.
"Commitment" shall mean, for each Bank, the amount set forth
opposite such Bank's name in Schedule I directly below the column entitled
"Commitment," as same may be (x) reduced from time to time pursuant to Sections
2.02, 2.03 and/or 9 or (y) adjusted from time to time as a result of assignments
to or from such Bank pursuant to Section 1.13 or 12.04(b).
"Commitment Commission" shall have the meaning provided in
Section 2.01.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries at such time.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Subsidiaries at
such time, but excluding the current portion of and accrued but unpaid interest
on any Indebtedness under this Agreement and any other long-term Indebtedness
which would otherwise be included therein.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income before Consolidated Interest Expense and before provision for taxes
for such period and without giving effect (w) to any extraordinary gains or
losses, (x) to any gains or losses from sales of assets other than from sales of
inventory sold in the ordinary course of business and (y) to any expenses
related to or incurred by the Borrower in connection with any Permitted
Acquisition, provided, however, that with respect to any Permitted Acquisition
which is accounted for as a "purchase," for the Calculation Period following
such acquisition Consolidated EBIT shall include results of operations of the
company or assets so acquired which amounts shall be determined on a Pro Forma
Basis.
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"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by adding thereto the amount of all amortization
and depreciation expense of the Borrower and its Subsidiaries that was deducted
in arriving at Consolidated EBIT for such period.
"Consolidated Indebtedness" shall mean, at any time, the
principal amount of all Indebtedness of the Borrower and its Subsidiaries at
such time determined on a consolidated basis to the extent that such
Indebtedness would be accounted for as debt in accordance with generally
accepted accounting principles plus, without duplication, (i) the maximum amount
available to be drawn under all letters of credit issued for the account of the
Borrower and its Subsidiaries and all unpaid drawings in respect of such letters
of credit, (ii) the principal amount of all bonds issued by the Borrower and its
Subsidiaries in connection with workers' compensation obligations, lease
obligations and similar obligations, (iii) all Indebtedness set forth on
Schedule V to the extent outstanding at such time and (iv) the amount of all
Contingent Obligations of the Borrower and its Subsidiaries determined on a
consolidated basis in respect of Indebtedness of other Persons of the type
described above in this definition.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period; provided that the amortization of fees and expenses with
respect to this Agreement, the Indebtedness incurred hereunder and any
Indebtedness incurred under Section 9.04(vi) or (vii) of the Existing Credit
Agreement shall be excluded from Consolidated Interest Expense to the extent
same would otherwise have been included therein.
"Consolidated Net Income" shall mean, for any Person and
period, the net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis (after deduction for minority
interests) in accordance with generally accepted accounting principles, provided
that (i) in determining Consolidated Net Income of the Borrower, the net income
(or loss) of any other Person which is not a Subsidiary of the Borrower or is
accounted for by the Borrower by the equity method of accounting shall be
included only to the extent of the payment of dividends or distributions by such
other Person to the Borrower or a Subsidiary thereof during such period and (ii)
the net income (or loss) of any other Person acquired by such specified Person
or a Subsidiary of such Person in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded.
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person as a result of such Person being a general partner of
the other Person, unless the underlying obligation is expressly made
non-recourse as to such general partner, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity
-37-
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the
Borrower on the Effective Date and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is recommended
by a majority of the then Continuing Directors or is recommended by a committee
of the Board of Directors a majority of which is composed of the then Continuing
Directors.
"Credit Documents" shall mean this Agreement and, after the
execution and delivery thereof pursuant to the terms of this Agreement, each
Note, the Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of any Loan.
"Credit Party" shall mean the Borrower and each Subsidiary
Guarantor.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Determination Date" shall have the meaning provided in the
definition of "Pro Forma Basis."
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or partners or authorized or made any other distribution, payment
or delivery of property (other than common stock of such Person) or cash to its
stockholders or partners as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or any partnership interests outstanding on or after the
Effective Date (or any options or warrants issued by such Person with respect to
its capital stock), or set aside any funds for any of the foregoing purposes, or
shall have permitted any of its Subsidiaries to purchase or otherwise acquire
for a consideration any shares of any class of the capital stock or any
partnership interests of such Person outstanding on or after the Effective Date
(or any options or warrants issued by such Person with respect to its capital
stock). Without limiting the foregoing, "Dividends" with
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respect to any Person shall also include all payments made or required to be
made by such Person with respect to any stock appreciation rights, plans, equity
incentive or achievement plans or any similar plans or setting aside of any
funds for the foregoing purposes.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower incorporated or organized in the United States or any State or
territory thereof.
"Effective Date" shall have the meaning provided in Section
12.10.
"Eligible Transferee" shall mean and include a commercial
bank, insurance company, financial institution, fund or other Person which
regularly purchases interests in loans or extensions of credit of the types made
pursuant to this Agreement, any other Person which would constitute a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act as
in effect on the Effective Date or other "accredited investor" (as defined in
Regulation D of the Securities Act).
"End Date" shall have the meaning provided in the definition
of Applicable Base Rate Margin.
"Endorsement" shall have the meaning provided in Section 4.10.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guideline, written policy
and rule of common law now or hereafter in effect and in each case as amended,
and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et
seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water
Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss.
2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous Material Transportation Act, 49
U.S.C. ss. 1801 et seq. and
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the Occupational Safety and Health Act, 29 U.S.C. ss. 651 et seq.; and any state
and local or foreign counterparts or equivalents, in each case as amended from
time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" within the meaning of Section
414(b), (c), (m) or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean, with respect to each Interest
Period for a Eurodollar Loan, the London Interbank Offered Rate for borrowings
(rounded upward to the nearest 1/16 of one percent) for deposits of Dollars in
minimum amounts of at least the Minimum Borrowing Amount applicable to such
Eurodollar Loan for a period equivalent to such period at or about 11:00 A.M.
(London time) on the second Business Day before the first day of such period as
is displayed on Telerate page 3750 (British Bankers' Association Interest
Settlement Rates) (or such other page as may replace such page 3750 on such
system, provided that if on such date no such rate is so displayed, the
Eurodollar Rate for such period shall be the rate determined by the
Administrative Agent to be the arithmetic average (rounded upward, if necessary,
to the nearest 1/16 of one percent) of the rate per annum at which deposits of
Dollars in an amount approximately equal to the amount in relation to which the
Eurodollar Rate is to be determined for a period equivalent to such period are
being offered by first class banks in the London Interbank Market at or about
11:00 A.M. (London time) on the second Business Day before the first day of such
period, provided further that in each case the rate obtained above shall be
adjusted to take account of reserve requirements by dividing such rate by the
Eurodollar Reserve Percentage (with such resulting rate to be rounded upward, if
necessary, to the nearest 1/100 of one percent).
"Eurodollar Reserve Percentage" shall mean for any day, the
remainder of one minus the percentage (expressed as a decimal and rounded
upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Federal Reserve Board (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) in respect of Eurocurrency
liabilities or any similar category of liabilities for a member bank of the
Federal Reserve System in New York City.
"Event of Default" shall have the meaning provided in Section
9.
"Excess Cash Flow" shall mean, for any period, the remainder
of (i) the sum of (a) Adjusted Consolidated Cash Income for such period and (b)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day of such period to the last day of such period,
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minus (ii) the sum of (a) the amount of all Capital Expenditures, made by the
Borrower and its Subsidiaries pursuant to Section 9.07(a) of the Existing Credit
Agreement during such period, (b) the aggregate principal amount of permanent
principal payments of Indebtedness for borrowed money of the Borrower and its
Subsidiaries (other than repayments pursuant to which any other Indebtedness is
being refinanced with proceeds of Indebtedness, equity issuances, asset sales or
insurance proceeds, and repayments of Loans, provided that repayments of Loans
shall be deducted in determining Excess Cash Flow if such repayments were made
as a voluntary prepayment but, only to the extent accompanied by a voluntary
reduction to the Total Commitment) during such period and (c) the increase, if
any, in Adjusted Consolidated Working Capital from the first day of such period
to the last day of such period.
"Excess Cash Payment Date" shall mean the date occurring 90
days after the last day of each fiscal year of the Borrower (beginning with its
fiscal year ending September 30, 1999).
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Existing Credit Agreement" shall mean the Amended and
Restated Credit Agreement, dated as of November 17, 1997, amended and restated
as of February 26, 1999, as further amended, modified or supplemented to the
date hereof, among the Borrower, various lending institutions party thereto from
time to time, Xxxxxx Xxxxxxx Senior Funding, Inc., as Syndication Agent and
Co-Arranger, and First Union National Bank, as Administrative Agent and
Co-Arranger, as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Existing Indebtedness" shall have the meaning provided in
Section 6.21.
"Existing Mortgage Policy" shall mean and include each
mortgagee title insurance policy in respect of the Mortgaged Properties and
previously issued in connection with the Existing Credit Agreement.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 2.01.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the Borrower
or any one or more of its Subsidiaries primarily for the benefit
-41-
of employees of the Borrower or such Subsidiaries residing outside the United
States of America, which plan, fund or other similar program provides, or
results in, retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which plan
is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower other than a Domestic Subsidiary.
"Hazardous Materials" shall mean (a) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (provided, that, if the Person has
not assumed or otherwise become liable in respect of such Indebtedness, such
Indebtedness shall be deemed to be in an amount equal to the fair market value
of the property to which such Lien relates as determined in good faith by such
Person), (iv) the aggregate amount required to be capitalized under leases under
which such Person is the lessee, (v) all obligations of such person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement or under any similar type of
agreement. Notwithstanding the foregoing, Indebtedness shall not include (x)
trade payables and accrued expenses incurred by any Person in accordance with
customary practices and in the ordinary course of business of such Person and
(y) deferred compensation obligations of any Person.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
-42-
"Investments" shall have the meaning provided in Section 9.05
of the Existing Credit Agreement.
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lending Office" shall mean, with respect to any Bank, any
office, branch, subsidiary or affiliate of such Bank.
"Leverage Ratio" shall mean, at any time, the ratio of (x)
Consolidated Indebtedness at such time to (y) Consolidated EBITDA for the then
most recently ended Test Period.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall have the meaning provided in Section 1.01.
"Margin Stock" shall have the meaning provided in Regulation
U.
"Maturity Date" shall mean November 15, 1999.
"Minimum Borrowing Amount" shall mean $1,000,000.
"Mortgaged Property" shall mean (i) each Real Property owned
by any Credit Party and designated as a Mortgaged Property on Schedule III and
(ii) each Real Property owned or leased by any Credit Party and designated as a
Mortgaged Property pursuant to Section 8.12 of the Existing Credit Agreement.
"MSSF" shall mean Xxxxxx Xxxxxxx Senior Funding, Inc., in its
individual capacity.
"Multiemployer Plan" shall mean a plan as defined in Section
4001(a)(3) of ERISA with respect to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate has an obligation to contribute to or any
liability.
"NAIC" shall mean the National Association of Insurance
Commissioners.
"Net Debt Proceeds" shall mean, with respect to any incurrence
of Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions, commitment and other financing fees and other costs
associated therewith) received by the respective Person from the respective
incurrence of such Indebtedness for borrowed money.
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"Net Insurance Proceeds" shall mean, with respect to any
Recovery Event, the cash proceeds (net of costs and taxes incurred in connection
with such Recovery Event) received by the respective Person in connection with
the respective Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross
cash proceeds (including any cash received by way of deferred payment pursuant
to a promissory note, receivable or otherwise, but only as and when received)
received from such sale of assets, net of the costs of such sale (including fees
and commissions, payments of unassumed liabilities relating to the assets sold
and required payments of any Indebtedness (other than Indebtedness secured
pursuant to the Security Documents or any Indebtedness owed to the Borrower or a
Subsidiary thereof) which is secured by the respective assets which were sold),
and the taxes paid or payable as a result of such Asset Sale.
"Non-Defaulting Bank" shall mean and include each Bank other
than a Defaulting Bank.
"Non-Excluded Taxes" shall have the meaning provided in
Section 3.04(a).
"Note" shall have the meaning provided in Section 1.05(a).
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, XX-00,
Xxxxxxxxx, XX 00000-0000, Attention: Syndication Services, with copies to 000
Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, XX 00000-0000, Attention: Leveraged
Finance, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to any Agent, the
Collateral Agent or any Bank pursuant to the terms of this Agreement or any
other Credit Document.
"Other Creditor" shall have the meaning provided in the
Security Documents.
"Other Hedging Agreement" shall mean any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency values.
"Payment Office" shall mean the office of the Administrative
Agent located at One First Union Center, 000 Xxxxx Xxxxxxx Xxxxxx, XX-00,
Xxxxxxxxx, XX 00000-0000, Attention: Syndication Services, or such other office
as the Administrative Agent may hereafter designate in writing as such to the
other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
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"Permitted Acquisition" shall have the meaning provided in
Section 9.02(ix) of the Existing Credit Agreement.
"Permitted Encumbrance" shall mean, with respect to any
Mortgaged Property, such exceptions to title as are set forth in the title
insurance policy or title commitment delivered with respect thereto and accepted
by the Agents.
"Permitted Holders" shall mean Harbor Group Investments III,
L.P., Uniquip-HGI Associates, L.P., X. Xxxxx Stiff, Xxxxxx Xxxxx, Xxxxx Xxxx,
Xxxxxx Xxxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxx.
"Permitted Liens" shall have the meaning provided in Section
9.01 of the Existing Credit Agreement.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, association, limited liability company, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate or with respect to which any such entity has liability.
"Pledged Notes" shall have the meaning provided in the Amended
and Restated Pledge Agreement.
"Pledged Securities" shall mean all "Pledged Securities" as
defined in the Amended and Restated Pledge Agreement.
"Prime Lending Rate" shall mean the rate which First Union
National Bank announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes. The Prime
Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. First Union National Bank may
make commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Pro Forma Basis" shall mean, with respect to any Permitted
Acquisition, the calculation of the consolidated results of the Borrower and its
Subsidiaries otherwise determined in accordance with this Agreement as if the
respective Permitted Acquisition (and all Indebtedness incurred to finance such
Permitted Acquisition, and all other Permitted Acquisitions, effected during the
respective Calculation Period or thereafter and on or prior to the date of
determination) (each such date, a "Determination Date") had been effected on the
first day of the respective Calculation Period; provided that all such
calculations shall be made on a basis consistent with the requirements of
Regulation S-X under the Securities Act and the Securities Exchange Act and
shall take into account the following assumptions:
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(i) interest expense attributable to interest on any
Indebtedness (whether existing or being incurred) bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation (taking into account any Interest Rate Protection Agreement
applicable to such Indebtedness if such Interest Rate Protection
Agreement has a remaining term in excess of 12 months) had been the
applicable rate for the entire period; and
(ii) pro forma effect shall be given to all Permitted
Acquisitions (by excluding or including, as the case may be, the
historical financial results for the respective properties) that occur
during such Calculation Period or thereafter and on or prior to the
Determination Date (including any Indebtedness assumed or acquired in
connection therewith) as if they had occurred on the first day of such
Calculation Period, in each case to the extent that the occurrence of
any such event required the financial covenants contained in Sections
9.08 through 9.10 of the Existing Credit Agreement, inclusive, to be
recalculated on a Pro Forma Basis.
"Projections" shall mean the projections prepared by the
Borrower and delivered to the Agents prior to the Effective Date and attached
hereto as Schedule VII.
"Quarterly Payment Date" shall mean each March 31, June 30,
September 30 and December 31 occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as the same may be amended from time to time, 42 X.X.X.xx. 6901 et seq. -- ----
"Real Property" of any Person shall mean all the right, title
and interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any
of its Subsidiaries of any cash insurance proceeds or condemnation awards
payable (i) by reason of theft, loss, physical destruction, damage, taking or
any other similar event with respect to any property or assets of the Borrower
or any of its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03 of the Existing Credit Agreement.
"Register" shall have the meaning provided in Section 12.15.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
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"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Release" shall mean the disposing, discharging, injecting,
spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying,
pouring or migrating, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section
1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of
whose outstanding Commitments (or after the termination thereof, outstanding
Loans) represent an amount greater than 50% of the sum of the Adjusted Total
Commitment (or after the termination thereof, the sum of the then total
outstanding Loans of Non-Defaulting Banks).
"SEC" shall have the meaning provided in Section 8.01(g) of
the Existing Credit Agreement.
"Section 3.04(b)(ii) Certificate" shall have the meaning
provided in Section 3.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the respective Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Security Document" shall mean and include each of the Amended
and Restated Security Agreement, the Amended and Restated Pledge Agreement and
each Amended and Restated Mortgage and, after the execution and delivery
thereof, each Additional Security Document.
"Snorkel Elevating Work Platforms Limited" shall mean Snorkel
Elevating Work Platforms Limited, a New Zealand corporation.
"Snorkel Elevating Work Platforms Pty Limited" shall mean
Snorkel Elevating Work Platforms Pty Limited, an Australian corporation.
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"Snorkel Revolver" shall mean that certain revolving credit
facility permitted pursuant to Section 9.04(xiii) of the Existing Credit
Agreement.
"Start Date" shall have the meaning provided in the definition
of Applicable Base Rate Margin.
"Subsidiaries Guaranty" shall have the meaning provided in
Section 4.09.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture or other entity in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean each Wholly-Owned Domestic
Subsidiary of the Borrower and, to the extent required by Section 8.13 of the
Existing Credit Agreement, each Wholly-Owned Foreign Subsidiary of the Borrower.
"Supermajority Banks" shall mean Non-Defaulting Banks the sum
of whose outstanding Commitments (or after the termination thereof, outstanding
Loans) represent an amount greater than 80% of the sum of the Adjusted Total
Commitment (or after the termination thereof, the sum of the then total
outstanding Loans of Non-Defaulting Banks).
"Syndication Agent" shall mean MSSF, in its capacity as
Syndication Agent and Co-Arranger for the Banks hereunder.
"Test Period" shall mean the period of four consecutive fiscal
quarters of the Borrower then last ended (in each case taken as one accounting
period).
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Unutilized Commitment" shall mean, at any time, an
amount equal to the remainder of (x) the Total Commitment then in effect, less
(y) the aggregate principal amount of Loans then outstanding.
"Total Unutilized Revolving Loan Commitment" shall have the
meaning provided in the Existing Credit Agreement.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
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"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year exceeds the
fair market value of the assets allocable thereto, each determined in accordance
with Statement of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan.
"United States" and "U.S." shall each mean the United States
of America.
"Unutilized Commitment" with respect to any Bank, at any time,
shall mean such Bank's Commitment at such time less the aggregate outstanding
principal amount of Loans made by such Bank.
"U.S. Internal Revenue Service Forms" shall have the meaning
provided in Section 3.04(b).
"Wholly-Owned Domestic Subsidiary" shall mean, as to any
Person, any Wholly-Owned Subsidiary of such Person which is a Domestic
Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any
Person, any Wholly-Owned Subsidiary of such Person which is a Foreign
Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, association, joint venture
or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
SECTION 11. The Administrative Agent and the Syndication
Agent.
11.01 Appointment. The Banks hereby designate First Union
Investors, Inc. as Administrative Agent to act as specified herein and in the
other Credit Documents and First Union National Bank to act as Collateral Agent
herein and in the other Credit Documents (for purposes of this Section 11 the
term "Administrative Agent" shall include First Union National Bank in its
capacity as Collateral Agent). The Banks hereby designate MSSF as Syndication
Agent (for purposes of this Section 11, the term "Syndication Agent" also shall
include MSSF in its capacity as Co-Arranger) to act as specified herein and in
the other Credit Documents. Each Bank hereby irrevocably authorizes, and each
holder of any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent and the Syndication Agent to take such
action on its behalf under the provisions of this Agreement, the other Credit
Documents and any other instruments and agreements referred to herein or therein
and to exercise such powers and to perform such duties hereunder and thereunder
as are specifically delegated to or required of the Administrative Agent and the
Syndication Agent by the terms hereof and thereof and such other powers as are
reasonably incidental thereto. The Administrative Agent and the Syndication
Agent may perform any of their duties hereunder by or through its respective
officers, directors, agents, employees or affiliates.
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11.02 Nature of Duties. Neither the Administrative Agent nor
the Syndication Agent in their capacity as such shall have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither the Administrative Agent, the Syndication Agent
in their capacity as such nor any of their respective officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by it or them hereunder or under any other Credit Document or in connection
herewith or therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of the Administrative Agent and the Syndication Agent
shall be mechanical and administrative in nature; neither the Administrative
Agent nor the Syndication Agent shall have by reason of this Agreement or any
other Credit Document a fiduciary relationship in respect of any Bank or the
holder of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent or the Syndication Agent any obligations in respect of
this Agreement or any other Credit Document except as expressly set forth herein
or therein.
11.03 Lack of Reliance on the Administrative Agent and the
Syndication Agent. Independently and without reliance upon the Administrative
Agent or the Syndication Agent, each Bank and the holder of each Note, to the
extent it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Borrower
and its Subsidiaries in connection with the making and the continuance of the
Loans and the taking or not taking of any action in connection herewith and (ii)
its own appraisal of the creditworthiness of the Borrower and its Subsidiaries
and, except as expressly provided in this Agreement, neither the Administrative
Agent nor the Syndication Agent shall have any duty or responsibility, either
initially or on a continuing basis, to provide any Bank or the holder of any
Note with any credit or other information with respect thereto, whether coming
into its possession before the making of the Loans or at any time or times
thereafter. Neither the Administrative Agent nor the Syndication Agent shall be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower or any of its Subsidiaries
or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of the Borrower or any of
its Subsidiaries or the existence or possible existence of any Default or Event
of Default.
11.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Banks; and such Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank or the holder of any
Note shall have any right of action whatsoever against any Agent as a result of
such Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks.
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11.05 Reliance. The Administrative Agent and the Syndication
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cablegram, radiogram, order or other document or
telephone message signed, sent or made by any Person that the Administrative
Agent or the Syndication Agent believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other Credit
Document and its duties hereunder and thereunder, upon advice of counsel
selected by the Administrative Agent or the Syndication Agent, as the case may
be.
11.06 Indemnification. To the extent the Administrative Agent
or the Syndication Agent is not reimbursed and indemnified by the Borrower or
any of its Subsidiaries, the Banks will reimburse and indemnify the
Administrative Agent and the Syndication Agent, in proportion to their
respective "percentages" as used in determining the Required Banks, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the
Administrative Agent or the Syndication Agent in performing its respective
duties hereunder or under any other Credit Document, in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's or the Syndication Agent's gross
negligence or willful misconduct.
11.07 The Administrative Agent and the Syndication Agent in
Their Individual Capacity. With respect to its obligation to make Loans under
this Agreement, the Administrative Agent and the Syndication Agent shall have
the rights and powers specified herein for a "Bank" and may exercise the same
rights and powers as though it were not performing the duties specified herein;
and the term "Banks," "Required Banks," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent and the Syndication Agent in their individual capacity. The
Administrative Agent and the Syndication Agent and their affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
investment banking, trust or other business with, or provide debt financing,
equity capital or other services (including financial advisory services) to, any
Credit Party or any Affiliate of any Credit Party (or any Person engaged in a
similar business with any Credit Party or any Affiliate thereof) as if they were
not performing the duties specified herein, and may accept fees and other
consideration from any Credit Party or any Affiliate of any Credit Party for
services in connection with this Agreement and otherwise without having to
account for the same to the Banks.
11.08 Holders. Any Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or endorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
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11.09 Resignation by the Administrative Agent and the
Syndication Agent. (a) The Administrative Agent and/or the Syndication Agent may
resign from the performance of all their respective functions and duties
hereunder and/or under the other Credit Documents at any time by giving 15
Business Days' prior written notice to the Banks and the Borrower (provided that
no such notice shall be required to be given to the Borrower if a Default or an
Event of Default of the type described in Section 9.05 exists with respect to
the Borrower). Such resignation, in the case of the Administrative Agent, shall
take effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below, and such resignation,
in the case of the Syndication Agent, shall take effect immediately.
(b) Upon any such notice of resignation by the Administrative
Agent, the Required Banks shall appoint a successor Administrative Agent
hereunder or thereunder who shall be a commercial bank or trust company
reasonably acceptable to the Borrower (it being understood and agreed that any
Non-Defaulting Bank is deemed to be acceptable to the Borrower).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 60th day after the date such notice
of resignation was given by the Administrative Agent, Administrative Agent's
resignation shall become effective and the Required Banks shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Required Banks appoint a
successor Administrative Agent as provided above.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses (w) of the Agents (including,
without limitation, the reasonable fees and disbursements of White & Case and of
the Agents' local counsel and consultants) in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents and the
documents and instruments referred to herein and therein, (x) of the Agents
(including, without limitation, the reasonable fees and expenses of White & Case
LLP or any other single law firm retained by the Agents) with respect to any
amendment, waiver or consent relating to this Agreement and/or the other Credit
Documents, (y) of the Agents in connection with their syndication efforts with
respect to this Agreement and (z) of the Agents and, after the occurrence of an
Event of Default, each of the Banks in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Agents and, after the occurrence of an
Event of Default, for each of the Banks); (ii) pay and hold each of the Banks
harmless from and against any and all present and future stamp, excise and other
similar
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documentary taxes with respect to the foregoing matters and save each of the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Bank) to pay such taxes; and (iii) indemnify each Agent and each Bank, and
each of their respective officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all liabilities,
obligations (including removal or remedial actions), losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, (a) any investigation, litigation or
other proceeding (whether or not any Agent or any Bank is a party thereto)
related to the entering into and/or performance of this Agreement or any other
Credit Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of the Transaction or any other transactions
contemplated herein or in any other Credit Document or the exercise of any of
their rights or remedies provided herein or in the other Credit Documents, or
(b) the actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any Real Property owned
or at any time operated by the Borrower or any of its Subsidiaries, the
generation, storage, transportation, handling or disposal of Hazardous Materials
at any location, whether or not owned or operated by the Borrower or any of its
Subsidiaries, the non-compliance of any Real Property with foreign, federal,
state and local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim asserted
against the Borrower, any of its Subsidiaries or any Real Property owned or at
any time operated by the Borrower or any of its Subsidiaries, including, in each
case, without limitation, the reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation, litigation
or other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence, bad faith or
willful misconduct of the Person to be indemnified). To the extent that the
undertaking to indemnify, pay or hold harmless any Agent or any Bank set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Bank is hereby authorized (to the extent not prohibited by applicable law) at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to the Borrower or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and apply any and all
deposits (general or special) and any other Indebtedness at any time held or
owing by such Bank (including, without limitation, by branches and agencies of
such Bank wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations and liabilities of the Credit
Parties to such Bank under this Agreement or under any of the other Credit
Documents, including, without limitation, all interests in Obligations purchased
by such Bank pursuant to Section 13.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent
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or unmatured. Notwithstanding anything to the contrary contained in this Section
13.02, no Bank shall exercise any such right of set-off without the prior
consent of the Agents or the Required Banks so long as the Obligations shall be
secured by any Real Property located in the State of California, it being
understood and agreed, however, that this sentence is for the sole benefit of
the Banks and (notwithstanding anything to the contrary contained in Section
13.12) may be amended, modified or waived in any respect by the Required Banks
without the requirement of prior notice to or consent by any Credit Party and
does not constitute a waiver of any right against any Credit Party or against
any Collateral.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents; if to any Bank, at its address specified on Schedule II; if to
the Syndication Agent, at the address specified on Schedule II; and if to the
Administrative Agent, at its Notice Office; or, as to any Credit Party or any
Agent, at such other address as shall be designated by such party in a written
notice to the other parties hereto and, as to each Bank, at such other address
as shall be designated by such Bank in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, be
effective when deposited in the mails, delivered to the telegraph company, cable
company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to any Agent or any Credit
Party shall not be effective until received by such Agent or such Credit Party.
12.04 Benefit of Agreement; Assignments; Participations. (a)
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, the Borrower may not assign or transfer any of its rights,
obligations or interest hereunder without the prior written consent of the Banks
and, provided further, that, although any Bank may transfer, assign or grant
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments hereunder except as provided in Sections 1.13 and 12.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall transfer or grant any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan or Note in which such participant is participating, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof, or increase
the amount of the participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or
of a mandatory reduction in the Total Commitment, shall not constitute a change
in the terms of such participation, and that an increase in any Commitment or
Loan shall be permitted without the consent of any participant if the
participant's participation is not increased as a result thereof), (ii) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (iii) release all or substantially all of
the Collateral under all of the Security Documents (except as expressly provided
in the Credit Documents) supporting the
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Loans hereunder in which such participant is participating. In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitments and related outstanding Obligations hereunder to its parent company
and/or any affiliate of such Bank which is at least 50% owned by such Bank or
its parent company or to one or more Banks or (y) assign all, or if less than
all, a portion equal to at least $5,000,000 in the aggregate for the assigning
Bank or assigning Banks, of such Commitments and related outstanding Obligations
hereunder to one or more Eligible Transferees, each of which assignees shall
become a party to this Agreement as a Bank by execution of an Assignment and
Assumption Agreement, provided that, (i) at such time Schedule I shall be deemed
modified to reflect the Commitments of such new Bank and of the existing Banks,
(ii) upon the surrender of the relevant Notes by the assigning Bank (or, upon
such assigning Bank's indemnifying the Borrower for any lost Note pursuant to a
customary indemnification agreement) new Notes will be issued, at the Borrower's
expense, to such new Bank and to the assigning Bank upon the request of such new
Bank or assigning Bank, such new Notes to be in conformity with the requirements
of Section 1.05 (with appropriate modifications) to the extent needed to reflect
the revised Commitments (or outstanding Term Loans, as the case may be), (iii)
the consent of the Agents shall be required in connection with any assignment to
an Eligible Transferee pursuant to clause (y) above (which consent shall not be
unreasonably withheld or delayed), (iv) so long as no Default or Event of
Default exists, the consent of the Borrower shall be required in connection with
any assignment to an Eligible Transferee pursuant to clause (y) above (which
consent shall not be unreasonably withheld or delayed, provided that the
Borrower may withhold its consent to a proposed assignment if such assignment
would result in increased costs to the Borrower under Section 1.10 or 3.04), (v)
the Administrative Agent shall receive at the time of each such assignment, from
the assigning or assignee Bank, the payment of a non-refundable assignment fee
of $3,500 and (vi) no such transfer or assignment will be effective until
recorded by the Administrative Agent on the Register pursuant to Section 12.15.
To the extent of any assignment pursuant to this Section 12.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its assigned
Commitments. At the time of each assignment pursuant to this Section 12.04(b) to
a Person which is not already a Bank hereunder and which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for Federal
income tax purposes, the respective assignee Bank shall, to the extent legally
entitled to do so, provide to the Borrower the appropriate Internal Revenue
Service Forms (and, if applicable, a Section 3.04(b) (ii) Certificate) described
in Section 3.04(b). To the extent that an assignment of all or any portion of a
Bank's Commitments and related outstanding Obligations pursuant to Section 1.13
or this Section 12.04(b) would, at the time of such assignment, result in
increased costs under Section 1.10 or 3.04 from those being charged by the
respective assigning Bank prior to such assignment, then the Borrower shall not
be obligated to pay such increased costs (although the Borrower, in accordance
with and pursuant to the other
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provisions of this Agreement, shall be obligated to pay any other increased
costs of the type described above resulting from changes after the date of the
respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings made by such Bank from such Federal Reserve Bank.
12.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or the Syndication Agent or any Bank in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower or any other Credit Party
and the Administrative Agent, the Syndication Agent or any Bank shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent, the Syndication Agent
or any Bank would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Syndication Agent or any Bank to any other or further
action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans or Commitment Commission, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all the Banks in such amount; provided that if all
or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject to
the express provisions of this
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Agreement which require, or permit, differing payments to be made to
Non-Defaulting Banks as opposed to Defaulting Banks.
12.07 Calculations; Computations; Accounting Terms. (a) The
financial statements to be furnished to the Banks pursuant hereto shall be made
and prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except (i)
as set forth in the notes thereto, (ii) for year-end adjustments in the case of
interim financial statements and (iii) as otherwise disclosed in writing by the
Borrower to the Banks) and consistent with those used to prepare the September
30, 1998 historical financial statements of the Borrower delivered to the Banks
pursuant to Section 6.05(a).
(b) All computations of interest, Commitment Commission and
other Fees hereunder, shall be made on the basis of a year of 360 days for the
actual number of days elapsed.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT,
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER, AND AGREES NOT TO PLEAD OR
CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER THE BORROWER. THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT
DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT, ANY BANK OR THE HOLDER OF ANY NOTE
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
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(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE
AND HEREBY FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which the Borrower, the Administrative Agent,
the Syndication Agent and each of the Banks shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered the
same to the Administrative Agent at its Notice Office or, in the case of the
Banks, shall have given to the Administrative Agent telephonic (confirmed in
writing), written or telex notice (actually received) at such office that the
same has been signed and mailed to it. The Administrative Agent will give the
Borrower and each Bank prompt written notice of the occurrence of the Effective
Date.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.12 Amendment or Waiver; etc. (a) Neither this Agreement nor
any other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the respective Credit Parties party thereto
and the Required Banks, provided that no such change, waiver, discharge or
termination shall, without the consent of each Bank (other than a Defaulting
Bank) (with Obligations being directly affected in the case of following clause
(i)), (i) extend the final scheduled maturity of any Loan or Note beyond the
Maturity Date, or reduce the rate of interest or Fees or extend the time of
payment of interest or Fees, or reduce the principal amount thereof (except to
the extent repaid in cash) (it being understood that any amendment or
modification to the financial definitions in this Agreement or to Section
12.07(a) shall not constitute a reduction in the rate of interest or any Fees
for purposes of this clause (i)), (ii) release
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all or substantially all of the Collateral (except as expressly provided in the
Credit Documents) under all the Security Documents, (iii) release a Subsidiary
Guarantor from the Subsidiaries Guaranty (except as expressly provided in the
Subsidiaries Guaranty or in connection with the sale of such Subsidiary
Guarantor in accordance with the terms of this Agreement), (iv) amend, modify or
waive any provision of this Section 12.12, (v) reduce the percentage specified
in the definition of Required Banks (it being understood that, with the consent
of the Required Banks, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Banks on
substantially the same basis as the extensions of Commitments are included on
the Effective Date) or (vi) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall (1)
increase the Commitments of any Bank over the amount thereof then in effect
without the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitments shall not constitute an
increase of the Commitment of any Bank, and that an increase in the available
portion of any Commitment of any Bank shall not constitute an increase of the
Commitment of such Bank), (2) without the consent of each Agent, amend, modify
or waive any provision of Section 11 or any other provision as same relates to
the rights or obligations of the Agents, (3) without the consent of the
Collateral Agent, amend, modify or waive any provision relating to the rights or
obligations of the Collateral Agent, (4) without the consent of each Bank (other
than a Defaulting Bank (as defined in the Existing Credit Agreement)) under, and
as defined in, the Existing Credit Agreement, provide additional extensions
credit to the Borrower secured by any Liens on the Collateral superior to the
existing Liens in favor of the Collateral Agent on behalf of the Existing
Secured Creditors (as defined in the respective Security Document) pursuant to
the Security Documents (as in effect on the Effective Date), (5) extend the
Maturity Date without the consent of those Non-Defaulting Lenders (as defined in
the Existing Credit Agreement) constituting the Required Banks under, and as
defined, in the Existing Credit Agreement, if the percentage "50%" contained in
the definition thereof was changed to "66-2/3%" or (6) except in cases where
additional extensions of loans are being afforded substantially the same
treatment afforded to the Loans pursuant to this Agreement as originally in
effect, without the consent of the Supermajority Banks amend or modify the
definition of Supermajority Banks or reduce the required application of any
prepayments or repayments (or commitment reductions) pursuant to Section 3.02.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (i) through (vi), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described in either clauses
(A) or (B) below, to either (A) replace each such non-consenting Bank or Banks
with one or more Replacement Banks pursuant to Section 1.13 so long as at the
time of such replacement, each such Replacement Bank consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Bank's Commitments (if such Bank's consent is required as a result of its
Commitments), provided that, unless the Commitments that are terminated, and
Loans repaid, pursuant to preceding clause (B) are immediately replaced in full
at such time through the addition of new Banks or the increase of
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the Commitments and/or outstanding Loans of existing Banks (who in each case
must specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Required Banks (determined after giving effect to the
proposed action) shall specifically consent thereto, provided further, that in
any event the Borrower shall not have the right to replace a Bank, terminate its
Commitments or repay its Loans solely as a result of the exercise of such Bank's
rights (and the withholding of any required consent by such Bank) pursuant to
the second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 3.04, 11.06 and 12.01 shall survive
the execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Obligations.
12.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any of its Lending Offices. Notwithstanding
anything to the contrary contained herein, to the extent that a transfer of
Loans pursuant to this Section 12.14 would, at the time of such transfer, result
in increased costs under Section 1.10, 1.11 or 3.04 from those being charged by
the respective Bank prior to such transfer, then the Borrower shall not be
obligated to pay such increased costs (although the Borrower shall be obligated
to pay any other increased costs of the type described above resulting from
changes after the date of the respective transfer).
12.15 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 12.15, to maintain a register (the "Register") on which it will
record the name and address of each Bank, the Commitments from time to time of
each of the Banks, the Loans made by each of the Banks and each repayment in
respect of the principal amount of the Loans of each Bank. Failure to make any
such recordation, or any error in such recordation shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Bank, the
transfer of the Commitments of such Bank and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitments shall not be effective
until such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitments and Loans and prior to such
recordation all amounts owing to the transferor with respect to such Commitments
and Loans shall remain owing to the transferor. The registration of assignment
or transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 12.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Bank shall
surrender the Note evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. The Borrower agrees to indemnify the
Administrative Agent from and against any and all losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, asserted against or
incurred by the Agent in performing its duties under this Section 12.15.
12.16 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 12.16, each Bank agrees that it will not disclose without
the prior consent of the Borrower (other
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than to its employees, auditors, advisors or counsel or to another Bank if the
Bank or such Bank's holding or parent company in its sole discretion determines
that any such party should have access to such information, provided such
Persons shall be subject to the provisions of this Section 12.16 to the same
extent as such Bank) any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Borrower to the
Banks in writing as confidential, provided that any Bank may disclose any such
information (a) as has become generally available to the public other than by
virtue of a breach of this Section 12.16(a) by the respective Bank, (b) as may
be required or reasonably appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over such Bank or to the Federal Reserve Board, the Federal
Deposit Insurance Corporation, the NAIC or similar organizations (whether in the
United States or elsewhere) or their successors, (c) as may be required or
reasonably appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, (e) to the Agents and (f) to any prospective or
actual transferee or participant in connection with any contemplated transfer or
participation of any of the Notes or Commitments or any interest therein by such
Bank and to any direct or indirect contractual counterparties in Interest Rate
Protection Agreements or Other Hedging Agreements entered into by any Bank,
provided that such prospective transferee and each such contractual counterparty
agrees to be bound by the confidentiality provisions contained in this Section
12.16.
(b) The Borrower hereby acknowledges and agrees that each Bank
may share with any of its affiliates any information related to the Borrower or
any of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its Subsidiaries,
provided such Persons shall be subject to the provisions of this Section 12.16
to the same extent as such Bank).
12.17 Limitation on Increased Costs. Notwithstanding anything
to the contrary contained in Section 1.10, 1.11 or 3.04, unless a Bank gives
notice to the Borrower that it is obligated to pay an amount under any such
Section within 180 days after the later of (x) the date such Bank incurs the
respective increased costs, Taxes, loss, expense or liability, or reduction in
amounts received or receivable or reduction in return on capital or (y) the date
such Bank has actual knowledge of its incurrence of the respective increased
costs, Taxes, loss, expense or liability, or reductions in amounts received or
receivable or reduction in return on capital, then such Bank shall only be
entitled to be compensated for such amount by the Borrower pursuant to said
Section 1.10, 1.11 or 3.04, as the case may be, to the extent the costs, Taxes,
loss, expense or liability, or reduction in amounts received or receivable or
reduction in return on capital are incurred or suffered on or after the date
which occurs 180 days prior to such Bank giving notice to the Borrower that it
is obligated to pay the respective amounts pursuant to said Section 1.10, 1.11
or 3.04, as the case may be. This Section 12.17 shall have no applicability to
any Section of this Agreement or any other Credit Document other than said
Sections 1.10, 1.11 and 3.04.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
000 Xxxx Xxxx Xxxxxx XXXXXXXX INTERNATIONAL, INC.
Xxxx Xxxxxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000 By /s/ Xxxxxx Xxxxxxx
Attention: Vice President Finance and -------------------------------------
Chief Financial Officer Title: Vice President Finance and
Chief Financial Officer
XXXXXX XXXXXXX SENIOR FUNDING,
INC., Individually and as
Syndication Agent and Co-Arranger
By /s/ T. Xxxxxx Xxxxxxx XX
------------------------------------
Title: Vice President
FIRST UNION CAPITAL MARKETS CORP.,
Individually and as Co-Arranger
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Title: Managing Director
FIRST UNION INVESTORS, INC.,
Individually and as
Administrative Agent
By /s/ Xxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President
BANK LEUMI USA
By /s/ Xxxxxx Xxxxx
-----------------------------------
Title: Senior Vice President -
Manager
FIRST BANK
By /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Executive Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
THE FUJI BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title: Senior Vice President &
Group Head
XXXXXX TRUST AND SAVINGS BANK
By /s/ Xxxxxx X. Dluby
-----------------------------------
Title: Vice President
