1
Exhibit 4.17
===============================================================================
$275,000,000
SECOND RESTATED SECURED CREDIT AGREEMENT
dated as of
February 25, 1997
among
SEALY CORPORATION,
as Borrower,
Various Financial Institutions,
as Banks,
BANQUE PARIBAS,
as Documentation Agent,
NATIONSBANK, N.A.,
as Syndication Agent,
and
BANK OF AMERICA ILLINOIS,
as Administrative Agent
Arranged by
BANCAMERICA SECURITIES, INC.
===============================================================================
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INTERPRETATION; ASSIGNMENTS
1.01. Definitions.................................................. 1
1.02. Interpretation............................................... 24
1.03. Reallocation of Loans and Commitments........................ 26
ARTICLE II
THE CREDIT
2.01. Commitments to Make Revolving Loans.......................... 27
2.02. Reductions of Total Commitment Amount........................ 27
2.03. Fees......................................................... 28
2.04. Method of Borrowing of Revolving Loans;
Ratable Loans................................................ 29
2.05. Method of Selecting Rate Options and Interest
Periods; Telephonic Notices.................................. 29
2.06. Amount of Each Advance....................................... 30
2.07. Swing Loans.................................................. 30
2.08. Notes........................................................ 32
2.09. Final Maturity............................................... 32
2.10. Optional Principal Prepayments............................... 32
2.11. Mandatory Prepayments Resulting From
Commitment Reductions........................................ 33
2.12. Rate Options; Interest Payment Dates;
Interest Basis; Payments Due on Days Not
Business Days................................................ 33
2.13. Rate after Default........................................... 34
2.14. Method of Payment; Application of Payment.................... 34
2.15. Notification of Advances, Interest Rates,
Prepayments and Total Commitment Reductions.................. 35
2.16. Lending Installations........................................ 35
2.17. Non-Receipt of Funds by the Administrative
Agent........................................................ 35
2.18. Continuation and Conversion Elections........................ 36
2.19. Net Payments; Tax Exemptions................................. 37
2.20. Letters of Credit............................................ 38
2.20.01. Issuance of Letters of Credit...................... 38
2.20.02. Issuance Requests.................................. 39
2.20.03. Amendments......................................... 40
2.20.04. Letter of Credit Fees.............................. 40
2.20.05. Other Banks' Participations;
Reimbursements..................................... 41
2.20.06. Disbursements...................................... 42
2.20.07. Reimbursement...................................... 42
2.20.08. Deemed Disbursements............................... 43
i
3
PAGE
----
2.20.09. Nature of Reimbursement
Obligations................................. 43
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.01. Yield Protection............................................. 45
3.02. Availability of Rate Options; Illegality..................... 47
3.03. Funding Indemnification...................................... 47
3.04. Change of Lending Office, Replacement of
Bank, etc.................................................... 48
ARTICLE IV
CONDITIONS PRECEDENT
4.01. All Credit Extensions........................................ 49
4.01.01. Required Notice................................... 49
4.01.02. No Default........................................ 49
4.01.03. Representations and Warranties
Correct........................................... 49
4.01.04. No Litigation, etc................................ 49
4.01.05. Further Requests.................................. 50
4.01.06. Satisfactory Legal Form........................... 50
4.02. Amendment Effective Time..................................... 51
4.02.01. Resolutions, etc.................................. 51
4.02.02. No Materially Adverse Effect...................... 51
4.02.03. Closing Fees and Expenses......................... 52
4.02.04. Notes............................................. 52
4.02.05. Opinions of Counsel............................... 52
4.02.06. Confirmation...................................... 52
4.02.07. Real Estate....................................... 52
4.02.08. Other Conditions.................................. 53
4.02.09. All Proceedings and Instruments
Satisfactory...................................... 53
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Corporate Existence and Power................................ 53
5.02. Corporate and Governmental Authorization;
Contravention................................................ 53
5.03. Binding Effect; Ranking...................................... 54
5.04. Financial Statements......................................... 54
5.05. Materially Adverse Effect.................................... 55
5.06. Solvency..................................................... 55
ii
4
PAGE
----
5.07. Subsidiaries; Capitalization................................. 55
5.08. Litigation................................................... 55
5.09. Investment Company........................................... 56
5.10. Public Utility Company....................................... 56
5.11. Absence of Default........................................... 56
5.12. Disclosure................................................... 56
5.13. Regulations G, T, U and X.................................... 56
5.14. Securities Regulations....................................... 57
5.15. Taxes........................................................ 57
5.16. Pension and Welfare Plans.................................... 57
5.17. Labor Controversies.......................................... 57
5.18. Ownership of Properties; Liens............................... 57
5.19. Patents, Trademarks, etc..................................... 58
5.20. Subordinated Debt, etc....................................... 58
5.21. The Collateral Documents..................................... 59
5.22. Hazardous Materials.......................................... 60
ARTICLE VI
COVENANTS
6.01. Certain Affirmative Covenants................................ 62
6.01.01. Financial Information, etc........................ 62
6.01.02. Maintenance of Corporate Existence,
etc............................................... 63
6.01.03. Foreign Qualification............................. 63
6.01.04. Payment of Taxes, etc............................. 64
6.01.05. Maintenance of Property........................... 64
6.01.06. Notice of Default, Litigation,
etc............................................... 64
6.01.07. Performance of Instruments........................ 65
6.01.08. Collateral Audits; Books and
Records........................................... 66
6.01.09. Compliance with Laws, etc......................... 66
6.01.10. Security.......................................... 66
6.01.11. Cash Management System............................ 67
6.01.12. Insurance......................................... 67
6.01.13. Environmental Matters............................. 68
6.01.14 Real Estate Matters............................... 69
6.02. Certain Negative Covenants................................... 69
6.02.01. Business Activities............................... 70
6.02.02. Debt.............................................. 70
6.02.03. Liens............................................. 71
6.02.04. Financial Condition............................... 73
6.02.05. Investments....................................... 74
6.02.06. Restricted Payments, etc.......................... 76
6.02.07. Overseas Expenditures............................. 78
6.02.08. Guarantees........................................ 78
iii
5
PAGE
----
6.02.09. Lease Obligations..................................... 79
6.02.10. Take or Pay Contracts................................. 79
6.02.11. Consolidation, Merger, Sale of
Assets, etc........................................... 79
6.02.12. Modification, etc. of Certain
Agreements............................................ 81
6.02.13. Transactions with Affiliates.......................... 81
6.02.14. Negative Pledges; Subsidiary
Payments.............................................. 81
6.02.15. Subordinated Debt Instruments......................... 82
6.02.16. Inconsistent Agreements............................... 82
6.02.17. Fiscal Year........................................... 82
6.02.18. Use of Proceeds....................................... 82
6.02.19. Tax Sharing Agreements................................ 82
6.02.20. Swap Agreements....................................... 82
ARTICLE VII
DEFAULTS
7.01. Events of Default............................................... 83
7.02. Notice of Default............................................... 85
ARTICLE VIII
AMENDMENTS AND REMEDIES
8.01. Amendments...................................................... 86
8.02. Preservation of Rights.......................................... 86
8.03. Collateral Matters.............................................. 87
ARTICLE IX
GENERAL PROVISIONS
9.01. Survival of Representations..................................... 88
9.02. Governmental Regulation......................................... 88
9.03. Taxes........................................................... 88
9.04. Headings........................................................ 88
9.05. Entire Agreement................................................ 88
9.06. Several Obligations............................................. 88
9.07. Expenses; Indemnification....................................... 89
9.08. Numbers of Documents............................................ 90
9.09. Severability of Provisions...................................... 90
9.10. Nonliability of Banks........................................... 90
9.11. CHOICE OF LAW................................................... 90
9.12. CONSENT TO JURISDICTION......................................... 90
9.13. WAIVER OF JURY TRIAL............................................ 91
iv
6
PAGE
----
9.14. Limitation on Administrative Agent and Bank
Liability......................................................... 91
9.15. Confidentiality................................................... 92
ARTICLE X
THE ADMINISTRATIVE AGENT
10.01. Appointment and Authorization..................................... 92
10.02. Delegation of Duties.............................................. 93
10.03. Liability of Administrative Agent................................. 93
10.04. Reliance by Administrative Agent.................................. 93
10.05. Notice of Default................................................. 94
10.06. Credit Decision................................................... 94
10.07. Indemnification of Administrative Agent........................... 95
10.08. Administrative Agent in Individual Capacity....................... 95
10.09. Successor Administrative Agent.................................... 96
10.10. Withholding Tax................................................... 96
10.11. Syndication Agent; Documentation Agent............................ 98
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.01. Setoff............................................................. 98
11.02. Ratable Payments................................................... 98
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
SECTION 12.01. Successors and Assigns........................... 99
12.02. Assignments and Participations..................................... 99
12.03. Tax Treatment......................................................104
ARTICLE XIII
NOTICES
13.01. Giving Notice......................................................104
13.02. Change of Address..................................................105
ARTICLE XIV
COUNTERPARTS; REFERENCES; CONFIRMATION
14.01. Counterparts.......................................................105
14.02. References.........................................................105
14.03. Confirmation.......................................................105
v
7
SCHEDULES
---------
Schedule I - Disclosure Schedule
Schedule II - Pricing Schedule
Schedule 2.01 - Initial Commitments and Percentages
Schedule 2.20.01(a) - Issuers of Letters of Credit
Schedule 2.20.01(b) - Letters of Credit Outstanding
EXHIBITS
--------
Exhibit A - Form of Global Revolving Note
Exhibit B - Form of Swing Note
Exhibit C - Form of Confirmation
Exhibit D - Form of Borrowing Notice
Exhibit E-1 - Form of Issuance Request
Exhibit E-2 - Form of Request for Letter of Credit
Amendment
Exhibit F - Form of Repayment Notice
Exhibit G - Form of Continuation/Conversion Notice
and Certificate
Exhibit H-1 - Form of Amendment to Subsidiary Guarantees
Exhibit H-2 - Form of Amendment to Contribution Agreement
Exhibit H-3 - Form of Amendment to Pledge Agreements
Exhibit H-4 - Form of Amendment to Security Agreements
Exhibit H-5 - Form of Assignment of and Amendment to
Trademark Security Agreement
Exhibit H-6 - Form of Assignment of and Amendment to
Patent Security Agreement
Exhibit H-7 - Form of Intercompany Note
Exhibit I - Form of Compliance Certificate
Exhibit J-1 - Form of Mortgage Amendment
Exhibit J-2 - Form of Mortgage
Exhibit K-1 - Form of Opinion of Xxxxxx, Halter & Xxxxxxxx
Exhibit K-2 - Form of Opinion of Kramer, Levin, Naftalis
& Xxxxxxx
Exhibit K-3 - Form of Opinion of Xxxxxxxxx &
Xxxxxxxxxxx, P.C.
Exhibit K-4 - Form of Opinion of Xxxxx, Xxxxx & Xxxxx
Exhibit L - Form of Assignment and Acceptance
Exhibit M - Form of Cash Management Letter
Exhibit N - Form of Intercompany Subordination Agreement
Exhibit O-1 - Subsidiary Guarantee
Exhibit O-2 - Contribution Agreement
Exhibit O-3 - Pledge Agreement
Exhibit O-4 - Security Agreement
Exhibit O-5 - Trademark Security Agreement
Exhibit O-6 - Patent Security Agreement
Exhibit P - Form of Insurance Endorsement
vi
8
SECOND RESTATED SECURED CREDIT AGREEMENT
THIS SECOND RESTATED SECURED CREDIT AGREEMENT, dated as of February 25,
1997, is among SEALY CORPORATION (the "BORROWER"), a Delaware corporation, the
financial institutions whose signatures appear on the signature pages hereof or
which hereafter become parties hereto (collectively the "BANKS" and individually
each a "BANK"), BANQUE PARIBAS, a French banking corporation ("PARIBAS"), as
Documentation Agent, NATIONSBANK, N.A., a national banking association
("NATIONSBANK") as Syndication Agent, and BANK OF AMERICA ILLINOIS, an Illinois
banking corporation ("BAI"), as administrative agent for the Banks (in such
capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, pursuant to the Restated Secured Credit Agreement dated as of
May 27, 1994 (the "EXISTING AGREEMENT"), the Borrower borrowed $150,000,000 in
term loans and obtained commitments for up to $125,000,000 in revolving loans
and letters of credit;
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Agreement so as to, among other things, (a) reduce the principal amount
of the term loans thereunder to zero, (b) increase the amount of the revolving
credit facility to $275,000,000, (c) amend the pricing, certain covenants and
various other provisions of the Existing Agreement and (d) revise in certain
respects the composition of the lender group; and
WHEREAS, the parties hereto intend that this Agreement and the Credit
Documents executed in connection herewith not effect a novation of the
obligations of the Borrower under the Existing Agreement and the "Credit
Documents" (as defined in the Existing Agreement), but merely a restatement and,
where applicable, an amendment of the terms governing such obligations;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to the terms and conditions hereof, the Existing Agreement
is hereby restated in its entirety, and the parties hereto, intending to be
legally bound hereby, further agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION; ASSIGNMENTS
SECTION 1.01. DEFINITIONS. The following terms, as used herein and in the
other Credit Documents (unless a clear contrary intention appears), have the
following meanings:
9
"Adjusted Capital Expenditures" means, for any period, Consolidated
Capital Expenditures for such period minus Overseas Capital Expenditures for
such period.
"Adjusted EBITDA" means, for any period, the total of Consolidated
EBITDA for such period PLUS, to the extent deducted in determining Consolidated
EBITDA for such period (or MINUS to the extent it is a positive number added in
determining Consolidated EBITDA), Overseas EBITDA.
"Adjusted Senior Leverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio of (a) Consolidated Funded Debt minus Subordinated
Debt plus any Debt excluded from the definition of "Consolidated Funded Debt"
pursuant to CLAUSE (D) of such definition to (b) Adjusted EBITDA for the period
of four consecutive Fiscal Quarters ending on such day.
"Administrative Agent" is defined in the PREAMBLE.
"Advance" means a group of Revolving Loans hereunder consisting of the
aggregate amount of the Revolving Loans made (or converted or continued) on the
same Borrowing Date (or date of conversion or continuation), at the same Rate
Option and, in the case of Eurodollar Rate Loans, for the same Interest Period.
"Affected Bank" is defined in SECTION 3.04(A).
"Affected Loan" is defined in SECTION 3.02(B).
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, is in control of, is
controlled by or is under common control with such Person. A Person shall be
deemed to control another Person if the controlling Person possesses, directly
or indirectly, the power (a) to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise, or (b) to vote 10%
or more of the securities (on a fully diluted basis) having ordinary voting
power for the election of directors, managing general partners or similar
officials of the other Person.
"Agent-Related Person" means BAI in its capacity as Administrative
Agent hereunder and any successor administrative agent arising under SECTION
10.9, together with their respective Affiliates (including BancAmerica
Securities, Inc. in its capacity as arranger) and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agreement" means this Second Restated Secured Credit
Agreement including SCHEDULES and EXHIBITS.
2
10
"Amendment Effective Time" means the time when the conditions precedent
for the effectiveness of this Agreement specified in SECTION 4.02 shall have
been met.
"Applicable Law" with respect to any Person or matter means any law,
rule, regulation, order, decree or other requirement having the force of law
relating to such Person or matter and, where applicable, any interpretation
thereof by any Person having jurisdiction with respect thereto or charged with
the administration or interpretation thereof.
"Approval" means each and every approval, consent, filing and
registration by or with any Federal, state or other regulatory authority
necessary to authorize or permit the execution, delivery or performance by any
Person of this Agreement, any other Credit Document, or any other agreement or
instrument executed in connection with any of the foregoing or for the validity
or enforceability of any thereof against any Person.
"Assignment and Acceptance" is defined in SECTION 12.02(B)(V).
"Authorized Employee" means an Authorized Officer of the Borrower or
any other employee of the Borrower who has been designated as an "Authorized
Employee" in a certificate signed by an Authorized Officer and delivered to the
Administrative Agent (it being understood that the Administrative Agent may rely
on any such certificate until advised by a like certificate of any changes
therein).
"Authorized Officer" means any of the president, the general counsel,
the chief financial officer or the treasurer, acting singly, of the Borrower or,
as applicable, any Subsidiary.
"Attorney Costs" means all reasonable fees and disbursements of any law
firm or other external counsel and, without duplication, the allocated cost of
internal legal services and all disbursements of internal counsel.
"BAI" is defined in the PREAMBLE.
"Bank" is defined in the PREAMBLE.
"Beneficial Owner" is used as defined in Rule 13d-3 promulgated by the
Commission under the Securities Exchange Act of 1934.
"Borrower" is defined in the PREAMBLE.
"Borrowing Date" means any date on which Revolving Loans or Swing Loans
are made hereunder.
3
11
"Borrowing Notice" is defined in SECTION 2.05(A).
"Business Day" means (a) any day except a Saturday, Sunday or other day
on which commercial banks in Chicago or New York are authorized by law to close
and (b) relative to the date of (i) making or continuing any Loans as, or
converting any Loans from or into, Eurodollar Rate Loans, or (ii) making any
payment of principal or interest on any portion of the Loans being maintained as
Eurodollar Rate Loans, or (iii) giving any notice in connection with CLAUSE (I)
or (II) above, any such day on which dealings in U.S. Dollars are carried on in
the interbank eurodollar market.
"Canadian Subsidiary" means a Subsidiary of the Borrower incorporated
or organized under the federal laws of Canada or the laws of a province of
Canada or substantially all the business of which is carried on in Canada.
"Capitalized Lease" means any lease or similar arrangement of the
Borrower or any Subsidiary which is or should be classified on the Borrower's
consolidated balance sheet as a capitalized lease.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any Subsidiary under any Capitalized Lease.
"Cash Management Letter" means a letter agreement, substantially in the
form of EXHIBIT M or otherwise reasonably satisfactory to the Administrative
Agent, among the Borrower, each applicable U.S. Subsidiary, the Administrative
Agent, and any financial institution which is providing cash collection services
or collection accounts to, or maintaining a lockbox for, the Borrower or such
Subsidiary.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Change in Control" means the occurrence of any of the
following:
(a) the failure by Xxxx/Chilmark to be the Beneficial Owner of
issued and outstanding capital stock of the Borrower representing at
least 51%, on a fully diluted basis, of the voting power in elections
for directors of the Borrower, without regard to the occurrence of any
contingency; or
(b) a majority of the Board of Directors of the Borrower
ceases to be comprised of Continuing Directors; or
(c) any "Change of Control" as defined in the Senior
Subordinated Note Indenture or any other Subordinated Debt Document or
Senior Debt Document, as in effect from time to time, or any like
event, the occurrence of which would
4
12
obligate the Borrower to purchase, redeem or repay any Subordinated
Debt or Senior Debt prior to its stated maturity.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means, relative to the Borrower or any of its
Subsidiaries, collateral under each Collateral Document to which the Borrower or
such Subsidiary is a party and in, under or to which the Borrower or such
Subsidiary has any right, title or interest.
"Collateral Documents" means, collectively, each Pledge Agreement, each
Security Agreement, each Patent Security Agreement, each Trademark Security
Agreement, each Mortgage, each Subsidiary Guarantee, the Contribution Agreement,
each Mortgage Amendment, and each other instrument or document executed and
delivered pursuant to or in connection with any thereof in accordance with the
terms of this Agreement or the Existing Agreement.
"Collateral Release Date" means the date on which no Default exists AND
the Borrower provides evidence to the Administrative Agent that the senior
credit rating (either actual or implied) of the long term unsecured debt,
without credit enhancement, of the Borrower is BBB- or better as determined by
Standard & Poor's Ratings Group ("S&P") or Baa3 or better as determined by
Xxxxx'x Investors Service, Inc. ("Moody's"); PROVIDED that the Collateral
Release Date shall not occur unless both such ratings are realized or, if only
one such rating is realized, the other rating is BB+ or better from S&P or Ba1
or better from Moody's, as the case may be.
"Commercial Letter of Credit" means any Letter of Credit which is
drawable upon presentation of a sight draft and other documents evidencing the
sale or shipment of goods purchased by the Borrower or Subsidiary in the
ordinary course of business.
"Commission" means the United States Securities and Exchange
Commission.
"Commitment" of any Bank means its obligation to make Revolving Loans
and to participate in Swing Loans and Letters of Credit pursuant hereto. The
initial amount of the Commitment of each Bank is set forth on SCHEDULE 2.01.
"Commitment Fee Rate" means a rate per annum equal to (i) initially,
0.375% and (ii) commencing on the date on which the Borrower delivers (or, if
earlier, is required to deliver) its financial statements pursuant to SECTION
6.01.01 for the Fiscal Quarter ending February 28, 1997, the rate determined in
accordance with the Pricing Schedule.
5
13
"Compliance Certificate" means a certificate duly executed by an
Authorized Officer of the Borrower, substantially in the form of EXHIBIT I (with
such changes thereto as may be agreed upon from time to time by the
Administrative Agent and the Borrower for purposes of monitoring the compliance
of the Borrower and its Subsidiaries herewith).
"Confirmation" means the Confirmation of the Borrower and each
Subsidiary party to any Credit Document, substantially in the form of EXHIBIT C.
"Consolidated Capital Expenditures" means, for any period,
without duplication, the sum of
(a) the gross amount of additions (excluding repair and
maintenance and environmental costs and additions pursuant to
Capitalized Leases) during such period to property, plant and equipment
of the Borrower and its Subsidiaries; PLUS
(b) the aggregate amount of Capitalized Lease Liabilities
incurred in such period (to the extent not included as a Consolidated
Capital Expenditure in any prior period) by the Borrower and its
Subsidiaries (excluding the portion thereof, if any, allocable to
Interest Expense);
PROVIDED that no such amounts shall include additions resulting from Investments
accounted for under SECTION 6.02.05(E) or (H).
With respect to the purchase of any asset that is subsequently sold
within the 12-month period following such purchase in accordance with CLAUSE (B)
of the proviso to the definition of "Net Disposition Proceeds", Consolidated
Capital Expenditures shall not include such purchase, but shall include any
Capitalized Lease Liability resulting from the subsequent sale and leaseback
transaction; PROVIDED that if the sale price of such asset in such sale and
leaseback transaction is less than the purchase price therefor, Consolidated
Capital Expenditures shall include the excess of such purchase price over such
sale price.
"Consolidated EBITDA" means, for any period, the total (without
duplication) of: (a) Consolidated Net Income for such period, PLUS (b) to the
extent deducted in determining Consolidated Net Income for such period, all
expenses of the Borrower and its Subsidiaries for such period in respect of
Interest Expense, Taxes with respect to income, depreciation, amortization and
other non-cash charges (including any non-cash expense with respect to Non-Cash
Compensation Plans), MINUS (c) to the extent included in determining
Consolidated Net Income for such period, (i) any non-cash income with respect to
Non-Cash Compensation Plans and (ii) the income of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Subsidiary
6
14
from such income is not at the time permitted by the terms of its charter or
by-laws or any judgment, decree, order, statute, rule or regulation which is
binding on such Subsidiary.
"Consolidated Funded Debt" means all Debt of the Borrower and its
Subsidiaries determined on a consolidated basis, excluding (a) contingent
obligations in respect of undrawn letters of credit; (b) Debt described in
CLAUSES (F) and (G) of the definition of Debt, (c) Debt described in CLAUSES (H)
and (I) of the definition of Debt to the extent that such Debt relates to
obligations of other Persons of the types described in CLAUSES (A) and (B) of
this definition; and (d) any Debt described in CLAUSE (H) of SECTION 6.02.02 so
long as neither the Borrower nor any U.S. Subsidiary or Canadian Subsidiary has
any liability (in the form of a Guarantee or otherwise) in respect of such Debt,
PROVIDED that any such Debt in excess of $25,000,000 shall not be excluded from
Consolidated Funded Debt.
"Consolidated Net Income" means, for any Fiscal Quarter, all amounts
which would be included as net earnings on the consolidated statements of
earnings of the Borrower and its Subsidiaries at such time; PROVIDED that in any
event:
(a) no such amounts shall include any gain or loss arising
from the sale or disposition of any assets (other than (i) inventory
sold in the ordinary course of business or (ii) any gain or loss
arising from the sale or disposition of obsolete assets in the ordinary
course of business not to exceed in the aggregate $3,000,000 in any
Fiscal Year) or from the write-up of assets or any other extraordinary
gains; and
(b) no such amounts determined with respect to any Person
shall be included for any such period during which it was not at all
times a Subsidiary, except that amounts actually received from any such
Person may be included.
"Continuation/Conversion Notice" means a notice of continuation or
conversion duly executed by an Authorized Employee, substantially in the form of
EXHIBIT G (with such changes thereto as may be agreed upon from time to time by
the Borrower and the Administrative Agent).
"Continuing Director" means a director who either (a) was a member of
the Board of Directors of the Borrower prior to the Amendment Effective Time and
continuously thereafter or (b) after the Amendment Effective Time became a
director of the Borrower and whose election or nomination for election
subsequent to such date was approved by (i) a vote of the majority of the
Continuing Directors then on the Board of Directors of the Borrower or (ii)
Xxxx/Chilmark.
7
15
"Contractual Obligation" means, relative to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contribution Agreement" means the Contribution Agreement among the
Subsidiaries executing Subsidiary Guarantees, a copy of which is attached as
EXHIBIT O-2, as amended concurrently with the effectiveness of the 1993
Agreement by an amendment substantially in the form of EXHIBIT H-2.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under section 414 of the Code or section 4001 of ERISA.
"Corporate Base Rate" means for any day the rate of interest in effect
for such day as publicly announced from time to time by BAI as its "reference
rate." (The "reference rate" is a rate set by BAI based upon various factors
including BAI's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate.)
"Credit Documents" means this Agreement, the Notes, the Letters of
Credit, the Collateral Documents, the Intercompany Notes, the Intercompany
Subordination Agreement, each Borrowing Notice, each Issuance Request, each
Letter of Credit Amendment Request, each Rate Swap Agreement or FX Swap
Agreement with any Bank, the Contribution Agreement, each Cash Management
Letter, the Confirmation and each other instrument, agreement, certificate,
financing statement, stock power and notice executed and/or delivered by the
Borrower or any Subsidiary pursuant hereto or thereto or otherwise furnished by
or on behalf of the Borrower or any Subsidiary to the Administrative Agent or
any Bank in connection herewith or therewith.
"Credit Extension" means any Revolving Loan, Swing Loan,
Letter of Credit or Reimbursement Obligation.
"Debt" of any Person at any date means, without duplication, (a) the
principal of and premium (if any) in respect of (i) all obligations of such
Person for borrowed money and (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (b) all obligations of
such Person for the payment of money issued as payment in consideration of the
purchase by such Person of the stock or substantially all of the assets of other
Persons or in a merger or consolidation to which such Person was a party, (c)
all obligations, contingent or otherwise, relative to the face amount of all
letters of credit,
8
16
whether or not drawn, and banker's acceptances issued for the account of such
Person and similar credit transactions, (d) all obligations of such Person to
pay the deferred purchase price of property or services, except trade accounts
payable and other like current liabilities arising in the ordinary course of
business, (e) all obligations of such Person as lessee under Capitalized Leases,
(f) net obligations under interest rate or foreign exchange swap, exchange, cap
or similar arrangements, (g) any dividends declared but not yet paid on any
capital stock of such Person, (h) all obligations of the kind described in
CLAUSES (A) through (G) above secured by a Lien on any asset owned or being
purchased by such Person, whether or not such Debt is assumed by such Person,
provided that the amount of any such Debt shall be limited to the lesser of the
principal amount of the obligations so secured and the fair market value of the
property subject to such Lien, and (i) all obligations of the kind described in
CLAUSES (A) through (G) above Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived as permitted or provided hereby, become an Event or
Default.
"Default Rate" is defined in SECTION 2.13(A).
"Disbursement" is defined in SECTION 2.20.06.
"Disbursement Date" is defined in SECTION 2.20.06.
"Disclosure Schedule" means the schedule attached hereto as
SCHEDULE I.
"Dollar" and the sign "$" mean lawful money of the United
States.
"Effective Time Dividend" means a dividend payable by the Borrower
concurrently with the Amendment Effective Time in an amount not exceeding
$100,000,000.
"Eligible Assignee" is defined in SECTION 12.02(A).
"Employment Incentive Agreement" means any employment agreement between
the Borrower or any Subsidiary and a senior executive officer of the Borrower or
such Subsidiary providing for, among other compensation, the grant to such
officer of shares of capital stock of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of
1974.
9
17
"Eurodollar Base Rate" means, relative to a Eurodollar Rate Advance for
the relevant Interest Period, the rate determined by the Administrative Agent to
be the arithmetic average of the respective rates reported to the Administrative
Agent by each Reference Bank as the rate at which deposits in Dollars in
immediately available funds are offered to such Reference Bank by major banks in
the interbank eurodollar market at approximately 11 a.m., New York time, two
Business Days prior to the first day of such Interest Period, in the approximate
amount of such Reference Bank's relevant Eurodollar Rate Loan and having a
maturity approximately equal to such Interest Period. If any Reference Bank
fails to provide such quotation to the Administrative Agent, then the
Administrative Agent shall determine the Eurodollar Base Rate on the basis of
the quotations of the remaining Reference Bank(s).
"Eurodollar Rate" means, relative to a Eurodollar Rate Advance
for the relevant Interest Period, the sum of
(a) the quotient (rounded upwards, if necessary, to the next
1/16 of 1%) of (i) the Eurodollar Base Rate applicable to that Interest
Period, DIVIDED BY (ii) one minus the Reserve Requirement (expressed as
a decimal) applicable to that Interest Period, PLUS
(b) the then-applicable Margin.
"Eurodollar Rate Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Rate Loan" means a Loan which bears interest at a
Eurodollar Rate.
"Event of Default" is defined in SECTION 7.01.
"Excluded Taxes" is defined in the definition of "Taxes".
"Exemption Agreement" is defined in SECTION 2.19(B).
"Exemption Representation" is defined in SECTION 2.19(C).
"Existing Agreement" is defined in the RECITALS.
"Existing Bank" means a "Bank" under and as defined in the Existing
Agreement immediately prior to the Amendment Effective Time.
"Existing Revolving Loan" means a "Revolving Loan" under and as defined
in the Existing Agreement immediately prior to the Amendment Effective Time.
10
18
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Administrative Agent.
"Fee Letter" means each of the letter agreement, dated January 22, 1997
between the Borrower, BancAmerica Securities, Inc. and the Administrative Agent,
the letter agreement dated January 23, 1997 between the Borrower and
NationsBank, as Syndication Agent, and the letter agreement dated January 28,
1997 between the Borrower and Paribas, as Documentation Agent.
"Fiscal Quarter" means each of the four consecutive quarterly periods
of the Borrower collectively forming a Fiscal Year.
"Fiscal Year" means each period of four consecutive Fiscal Quarters
ending on December 1, 1996, November 30, 1997, November 29, 1998, November 28,
1999, December 3, 2000, December 2, 2001 and, December 1, 2002, respectively.
"Floating Rate" means a per annum interest rate equal to the sum of (a)
the greater at any time of (i) the Corporate Base Rate and (ii) the sum of the
Federal Funds Rate plus 0.25% PLUS (b) the then-applicable Margin, such sum
changing when and as the Corporate Base Rate, the Federal Funds Rate and/or the
Margin changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"FX Swap Agreement" means any foreign currency swap, exchange or
similar arrangement intended to protect against fluctuations in foreign currency
exchange rates.
"GAAP" means generally accepted accounting principles as set forth in
the opinions and pronouncements of the Commission and the Accounting Principles
Board of the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards Board and in
such other statements and pronouncements by such other Person as may be approved
by a significant segment of the accounting profession and concurred in
11
19
by the independent certified public accountants certifying such
audited financial statement.
"Global Revolving Note" is defined in SECTION 2.08(A).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person, including any obligation, direct or indirect,
contingent or otherwise, of such Person (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (b) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); PROVIDED that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" is defined in SECTION 5.22(A).
"Impermissible Qualification" means, relative to the opinion or
certification of any Independent Public Accountant as to any financial statement
of the Borrower or any of its Subsidiaries, any qualification or exception to
such opinion or certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be
to cause the Borrower to be in default of any of its obligations under
SECTION 6.02.04.
"Indemnified Liabilities" is defined in SECTION 9.07.
"Indemnified Party" is defined in SECTION 9.07.
"Independent Public Accountant" means any of the six largest public
accounting firms in the United States, or any other public accounting firm of
recognized national standing selected by the Borrower.
"Initial Financial Projections" means projections of the
Borrower's financial performance on an annual basis for Fiscal
12
20
Years 1997 through 2004, prepared by Borrower's management, as previously
delivered to the Banks.
"Intercompany Note" means a promissory note, substantially in
the form of EXHIBIT H-7.
"Intercompany Subordination Agreement" means an agreement among the
Borrower and its Subsidiaries substantially in the form of EXHIBIT N.
"Interest Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) Adjusted EBITDA for the period of four consecutive
Fiscal Quarters ending on such day minus Adjusted Capital Expenditures for such
period to (b) Interest Expense for such period, excluding any non-cash interest
expense or interest income for such period.
"Interest Expense" means, for any period, the aggregate net interest
expense of the Borrower and its Subsidiaries for such period, including all
commissions, discounts and other fees and charges incurred in connection with
commitment fees hereunder, net costs or net benefits under Rate Swap Agreements
and the portion of any interest expense payable with respect to Capitalized
Lease Liabilities.
"Interest Period" means, relative to a Eurodollar Rate Advance, a
period of one, two, three or six months commencing on a Business Day, each
selected by the Borrower pursuant to this Agreement. Such Interest Period shall
end on the day that is one, two, three or six months after, and which
corresponds numerically to, the beginning day of such Interest Period; PROVIDED
that if there is no such numerically corresponding day in such ending month,
such Interest Period shall end on the last Business Day of such ending month. If
an Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the immediately succeeding Business Day;
PROVIDED that if said immediately succeeding Business Day falls in a new month,
such Interest Period shall end on the immediately preceding Business Day. The
Borrower may not select any Interest Period which would (a) end after the
scheduled Termination Date or (b) result in the aggregate principal amount of
all Eurodollar Rate Loans having Interest Periods ending after any Commitment
Reduction Date plus the stated amount of all Letters of Credit with expiry dates
after such Commitment Reduction Date being in excess of the Total Commitment
Amount which is scheduled to be in effect after the reduction thereof on such
Commitment Reduction Date.
"Investment" means, relative to any investment of the Borrower
or any Subsidiary,
13
21
(a) any loan, advance or other extension of credit made by it
to any other Person (excluding (i) reasonable commission, travel,
salary, relocation, and similar advances or loans to officers and
employees made in the ordinary course of business, (ii) reasonable
advances against royalties or management fees arising in the ordinary
course of business and (iii) reasonable loans and advances in the
ordinary course of business made by the Borrower or any Subsidiary to a
dealer or distributor located in the United States or Canada);
(b) any Guarantee made by the Borrower or such Subsidiary;
and
(c) any capital contribution by the Borrower or such
Subsidiary to, or purchase of stock or other securities or partnership
interests by the Borrower or such Subsidiary in, any other Person, or
any other investment evidencing an ownership or similar interest of the
Borrower or such Subsidiary in any other Person;
and the amount of any Investment shall be the original principal or
capital amount thereof LESS
(i) all cash returns of principal thereof or equity
thereon, and
(ii) in the case of any Guarantee, any reduction in
the aggregate amount of liability under such Guarantee to the
extent that such reduction is made strictly in accordance with
the terms of such Guarantee (and, in each case, without
adjustment by reason of the financial condition of such other
Person);
and the amount of such Investment shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original principal
or capital amount equal to the fair market value of such property.
"Issuance Request" is defined in SECTION 2.20.02.
"Issuer" means any Bank listed from time to time on SCHEDULE 2.20.01(A)
(as such SCHEDULE may be amended or supplemented from time to time with the
consent of the Administrative Agent); and "Issuer" means, with respect to any
Letter of Credit, the issuer of such Letter of Credit.
"L/C Fee Rate" means a rate per annum equal to (i) initially, 1.25% in
the case of each Standby Letter of Credit and 0.75% in the case of each
Commercial Letter of Credit, and (ii) commencing on the date on which the
Borrower delivers (or, if earlier, is required to deliver) its financial
statements pursuant to SECTION
14
22
6.01.01 for the Fiscal Quarter ending February 28, 1997, the applicable rate
determined in accordance with the Pricing Schedule.
"Lending Installation" means any office, branch, Subsidiary or other
Affiliate of any Bank or the Administrative Agent.
"Letter of Credit" means any Standby Letter of Credit and/or Commercial
Letter of Credit, as the context may require or allow.
"Letter of Credit Amendment Request" is defined in SECTION
2.20.03.
"Lien" means, relative to any asset, any mortgage, lien (statutory or
otherwise), pledge, charge, security interest, assignment, deposit arrangement,
priority, encumbrance or preferential arrangement of any kind in respect of such
asset. For the purposes of this Agreement, the Borrower or any Subsidiary shall
be deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, Capitalized Lease or other title retention agreement relating to such
asset.
"Loan" means a Revolving Loan and/or a Swing Loan, as the context may
require or allow.
"Margin" means, for purposes of determining the Eurodollar Rate for any
Interest Period or the Floating Rate, as applicable, a rate per annum equal to
(i) initially, 1.25% for purposes of the Eurodollar Rate and zero for purposes
of the Floating Rate, and (ii) commencing on the date on which the Borrower
delivers (or, if earlier, is required to deliver) its financial statements
pursuant to SECTION 6.01.01 for the Fiscal Quarter ending February 28, 1997, the
applicable rate determined in accordance with the Pricing Schedule.
"Materially Adverse Effect" means, relative to any occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), a materially adverse
effect on:
(a) the consolidated business, assets, revenues, financial
condition, operations or prospects of the Borrower and its
Subsidiaries, taken as a whole; or
(b) the ability of the Borrower or, as applicable, any of its
Subsidiaries to perform any of its payment or other material
obligations under this Agreement, the Notes or any other Credit
Document to which it is a party.
"Mortgage" means each real estate mortgage or deed of trust
executed by the Borrower or a Subsidiary, in substantially the form
15
23
of EXHIBIT R-1 or R-2 to the Original Amended Credit Agreement or EXHIBIT J-2
hereto.
"Mortgage Amendment" means each amendment to each Mortgage previously
executed by the Borrower or a Subsidiary, in substantially the form of EXHIBIT
J-1.
"N.A.S.D." means the National Association of Securities
Dealers.
"NationsBank" is defined in the PREAMBLE.
"Net Debt Proceeds" means, relative to the sale or incurrence by the
Borrower or any Subsidiary of any Permitted Senior Debt or Subordinated Debt,
the excess of
(a) the gross cash proceeds received by the Borrower or any
Subsidiary from such sale or incurrence
OVER
(b) (i) all necessary or incidental reasonable fees and
expenses with respect to underwriting commissions, private placement
fees, legal, investment banking, and accounting fees and disbursements,
printing expenses, and any governmental or N.A.S.D. fees incurred (or
reasonably expected to be incurred) in connection with such sale or
incurrence which are not payable to Affiliates of the Borrower unless
such fees and disbursements are permitted by SECTION 6.02.13; plus
(ii) solely in the case of the sale or incurrence of
Subordinated Debt, the amount of such gross proceeds applied to the
repayment of existing Subordinated Debt, so long as the existing
Subordinated Debt had a maturity date the same as or prior to the
maturity date of such Subordinated Debt (with no amortization or
sinking fund payments prior to such date) and such Subordinated Debt
was issued at market rates.
"Net Disposition Proceeds" means the gross cash proceeds received by
the Borrower or any Subsidiary from the sale or other disposition of any of
their respective assets (excluding inventory sold in the ordinary course of
business but including condemnation awards, casualty loss insurance recoveries
and other similar payments received in respect of assets that are no longer
fully useful to the extent such assets are not replaced or repaired in
accordance with the applicable Collateral Documents) LESS (i) necessary or
incidental reasonable selling expenses incurred in connection therewith, (ii)
good faith estimated taxes (if any) payable as a result thereof, and (iii)
amounts necessary to retire Debt secured by any Liens permitted under SECTION
6.02.03 which encumber the subject assets; PROVIDED that Net Disposition
Proceeds
16
24
shall not include (A) the proceeds of any Restructure Investment or (B) the
proceeds of any sale and leaseback of real property or equipment expressly
permitted pursuant to and in accordance with SECTION 6.02.11(G) SO LONG AS such
proceeds of a sale and leaseback transaction represent a return or reimbursement
to the Borrower or any Subsidiary, within the same 12-month period as the
purchase of such real property or equipment, of any original purchase price for
such real property or equipment; IT BEING UNDERSTOOD that if the Borrower or
such Subsidiary receives proceeds from such sale in excess of the purchase price
thereof, such excess shall constitute Net Disposition Proceeds.
"New Royalty Income" means, for any period, royalty income received by
the Borrower or any U.S. Subsidiary or Canadian Subsidiary from licensing
arrangements other than (i) licenses granted for use in the United States or
Canada and (ii) other licensing arrangements existing at the Amendment Effective
Time (as extended from time to time).
"1993 Agreement" means the Secured Credit Agreement dated as of May 7,
1993 among the Borrower, various financial institutions and Paribas, Citicorp
USA, Inc., BAI (then known as Continental Bank N.A.) and General Electric
Capital Corporation, as Managing Agents.
"Non-Cash Compensation Plan" means (i) the Sealy Corporation
Performance Share Plan dated January 11, 1993, effective April 1, 1992, executed
by the Borrower, whereby the Borrower provided for certain unfunded long-term
incentive compensation for key employees of the Borrower and its Subsidiaries in
the form of shares convertible into capital stock of the Borrower, (ii) the
Sealy Corporation 1992 Stock Option Plan dated January 25, 1993, executed by the
Borrower, whereby the Borrower provided for options for the purchase of the
Borrower's stock to be extended to certain officers and executive, managerial
and professional employees of, and consultants to, the Borrower or any
Subsidiary and (iii) any plan replacing, or similar to, the above-referenced
Plans whereby the Borrower and its Subsidiaries provide for non-cash incentive
compensation in the form of, or permit employees or consultants to purchase,
stock of the Borrower or warrants or options in respect thereof.
"Note" means the Global Revolving Note and/or the Swing Note, as the
context may require or allow, and includes any note issued pursuant to SECTION
12.02(H) to evidence the Loans of any Bank.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and expenses, the stated
amount of any outstanding Letter of Credit, all Reimbursement Obligations, and
all other obligations of the
17
25
Borrower or, as applicable, any of its Subsidiaries to any Bank, the
Administrative Agent or any Issuer arising under or in connection with the
Credit Documents.
"Organic Document" means, relative to any Person, its certificate of
incorporation, its by-laws, and all shareholder agreements, voting trusts, and
similar arrangements applicable to any of its authorized shares of capital stock
or, as applicable, its partnership agreement and certificate of partnership.
"Original Amended Credit Agreement" has the meaning assigned
thereto in the 1993 Agreement.
"Overseas Capital Expenditures" means, for any period, the portion of
Consolidated Capital Expenditures in such period made by (a) Overseas
Subsidiaries and (b) the Borrower, any U.S. Subsidiary or any Canadian
Subsidiary in respect of assets located outside the United States and Canada.
"Overseas Expenditures" means the total, without duplication, of (a)
all Investments (including any Guarantee except to the extent terminated without
being called upon) made by the Borrower and its U.S. Subsidiaries and Canadian
Subsidiaries in Subsidiaries or other entities outside the United States and
Canada, PLUS (b) all Consolidated Capital Expenditures made by the Borrower and
its U.S. Subsidiaries and Canadian Subsidiaries in respect of assets located
outside the United States and Canada, PLUS (c) all expenses of the Borrower and
its U.S. Subsidiaries and Canadian Subsidiaries incurred in connection with the
investigation, analysis, development and management of businesses and business
opportunities outside the United States and Canada, MINUS (d) all New Royalty
Income received after the Amendment Effective Time.
"Overseas EBITDA" means, for any period, the total (without
duplication) of (a) the portion (either positive or negative) of Consolidated
EBITDA for such period which the Borrower reasonably determines (in accordance
with its customary practice prior to the Amendment Effective Time) is
attributable to Overseas Subsidiaries, MINUS (b) all expenses of the Borrower
and its U.S. Subsidiaries and Canadian Subsidiaries during such period incurred
in connection with the investigation, analysis, development and management of
businesses and business opportunities outside the United States and Canada, PLUS
(c) New Royalty Income for such period.
"Overseas Subsidiary" means a Subsidiary of the Borrower which
is not a U.S. Subsidiary or a Canadian Subsidiary.
"Paribas" is defined in the PREAMBLE.
"Patent Security Agreement" means each security agreement, in
substantially the form of EXHIBIT O-6, executed and delivered by a
18
26
Subsidiary, as amended (if applicable) concurrently with the effectiveness of
the 1993 Agreement by an amendment substantially in the form of EXHIBIT H-6.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA and to which the
Borrower, either directly or as a member of a Controlled Group, may have any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Percentage" of a Bank at any time means the percentage set forth
opposite such Bank's name in the column labeled "Percentage" on SCHEDULE 2.01
(or if such Bank has, subsequent to the signing of this Agreement, executed an
Assignment and Acceptance relating to its Commitment, as recorded in the
Register).
"Permitted Senior Debt" is defined in SECTION 6.02.02(J).
"Person" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Pledge Agreement" means each pledge agreement, substantially in the
form of EXHIBIT O-3, executed and delivered by the Borrower or a Subsidiary, as
amended (if applicable) concurrently with the effectiveness of the 1993
Agreement by an amendment substantially in the form of EXHIBIT H-3.
"Pricing Schedule" means the Schedule attached hereto as
SCHEDULE II.
"Quarterly Payment Date" means the last Business Day of each Fiscal
Quarter, subject to the terms of SECTION 2.12.
"Rate Option" means the Eurodollar Rate or the Floating Rate as the
context may require or allow.
"Rate Swap Agreement" means any interest rate swap, exchange, cap or
similar interest rate protection arrangement (including a firm option to
purchase such protection).
"Recipient Taxes" is defined in SECTION 2.19(A).
"Reference Banks" means Paribas, NationsBank and BAI.
19
27
"Register" is defined in SECTION 12.02(D).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System and shall include any successor or other regulation or
official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve System.
"Regulation G, T, U or X" means Regulation G, T, U or X, respectively,
of the Board of Governors of the Federal Reserve System.
"Reimbursement Obligation" is defined in SECTION 2.20.07.
"Release" is defined in SECTION 5.22(A).
"Repayment Notice" means a notice of repayment or prepayment duly
executed by an Authorized Employee, substantially in the form of EXHIBIT F (with
such changes thereto as may be agreed upon from time to time by the Borrower and
the Administrative Agent).
"Required Banks" means at any time Banks having aggregate Percentages
of more than 50%.
"Reserve Requirement" means, relative to an Interest Period, the
reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirement (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements), if any, specified under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
and then applicable to assets or liabilities consisting of and including
"Eurocurrency liabilities", as presently defined in Regulation D (or on similar
liabilities under any successor regulation), having a term approximately equal
to such Interest Period.
"Restructure Investments" is defined in SECTION 6.02.05(C).
"Revolving Loan" is defined in SECTION 2.01.
"Second Amended Credit Agreement" has the meaning assigned
thereto in the 1993 Agreement.
"Security Agreement" means each security agreement, in substantially
the form of EXHIBIT O-4, executed and delivered by the Borrower or a Subsidiary,
as amended (if applicable) concurrently with the effectiveness of the 1993
Agreement by an amendment substantially in the form of EXHIBIT H-4.
20
28
"Senior Leverage Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (a) Consolidated Funded Debt minus Subordinated Debt to
(b) Adjusted EBITDA for the period of four consecutive Fiscal Quarters ending on
such day.
"Senior Debt" means, collectively, without duplication (the amount of
all such Debt to be calculated by reference to the face amount outstanding or,
in the case of such Debt issued at a discount, by reference to the face amount
outstanding less the initial discount at issuance plus any accreted value to any
date of calculation), all Debt (including Permitted Senior Debt) of the Borrower
or any Subsidiary for money borrowed which is not subordinated to the
Obligations.
"Senior Debt Document" means any instrument evidencing or issued in
connection with Senior Debt, or pursuant to which any Senior Debt may be
incurred.
"Senior Subordinated Notes" means any of the senior subordinated notes
due 2003 issued pursuant to the Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" means the senior subordinated note
indenture, dated as of May 7, 1993, between the Borrower and Mellon Bank,
F.S.B., as successor trustee, pursuant to which $200,000,000 in original
principal amount of the Senior Subordinated Notes have been issued by the
Borrower.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (including contingent and unliquidated liabilities, determined after
taking into account the likelihood that such contingency will occur or such
liability will become fixed) as such value is established and liabilities
evaluated for purposes of Section 101(31) of the Bankruptcy Code and, in the
alternative, for purposes of the Uniform Fraudulent Transfer Act or the Uniform
Fraudulent Conveyance Act; (b) the present fair saleable value of the property
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property and pay its debts
and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital.
21
29
"Standby Letter of Credit" means any Letter of Credit other than a
Commercial Letter of Credit.
"Stated Expiry Date" is defined in SECTION 2.20.02(B)(I).
"Subordinated Debt" means, collectively, without duplication (the
amount of all such Debt to be calculated by reference to the face amount
outstanding or, in the case of such Debt issued at a discount, by reference to
the face amount outstanding less the initial discount at issuance plus any
accreted value to any date of calculation):
(a) the Senior Subordinated Notes; and
(b) all other Debt of the Borrower or any Subsidiary for money
borrowed which is subordinated in form and substance to the
Obligations, and which has subordination provisions, terms of payment,
interest rates, covenants, remedies, defaults and other material terms,
in each case satisfactory in form and substance to the Required Banks,
as evidenced by their prior written consent thereto.
"Subordinated Debt Document" means any Senior Subordinated Note, the
Senior Subordinated Note Indenture, and any other instrument evidencing or
issued in connection with Subordinated Debt, or pursuant to which any
Subordinated Debt may be incurred.
"Subsidiary" relative to any Person means any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Person.
Unless the context otherwise requires, all references herein to a Subsidiary
shall mean and be a reference to a Subsidiary of the Borrower.
"Subsidiary Guarantee" means each guarantee of a U.S. Subsidiary, in
substantially the form of EXHIBIT O-1, as amended (if applicable) concurrently
with the effectiveness of the 1993 Agreement by an amendment substantially in
the form of EXHIBIT H-1.
"Swap Party" means any Bank or Affiliate of any Bank, any commercial
bank of recognized standing having capital and surplus in excess of $500,000,000
or any Person the unsecured commercial paper of whom is rated at least "A-1" (or
the then-equivalent) by Standard & Poor's Ratings Group or at least "P-1" (or
the then-equivalent) by Xxxxx'x Investors Service, Inc., which has entered or
has agreed to enter into a Rate Swap Agreement or an FX Swap Agreement.
"Swing Loan" is defined in SECTION 2.07(A).
22
30
"Swing Note" is defined in SECTION 2.08(B).
"Taxes" relative to any Person means taxes, assessments or other
governmental charges or levies imposed upon such Person, its income or any of
its properties, franchises or assets (excluding, in the case of payments made to
a Bank or the Administrative Agent, taxes imposed upon the overall net income of
such Bank or the Administrative Agent, franchise taxes imposed upon such Bank or
the Administrative Agent with respect to its net income by the jurisdiction
under the laws of which such Bank or the Administrative Agent, as the case may
be, is organized or any political subdivision thereof and franchise taxes
imposed upon such Bank or the Administrative Agent with respect to its net
income by the jurisdiction in which such Bank's or the Administrative Agent's
Lending Installation is located or any political subdivision thereof, all such
Taxes being "EXCLUDED TAXES").
"Temporary Cash Investment" means any Investment in (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 24 months from the date of acquisition by the Borrower, (ii) time deposits
and certificates of deposit of any Bank with maturities of not more than 24
months from the date of acquisition by the Borrower, (iii) repurchase
obligations with a term of not more than 7 days for underlying securities of the
types described in CLAUSE (I) above entered into with any Bank, (iv) commercial
paper issued by the parent corporation of any Bank or any domestic or
international commercial bank of recognized standing having capital and surplus
in excess of $500,000,000 and commercial paper issued by any Person rated at
least "A-2" (or the then-equivalent thereof) by Standard & Poor's Ratings Group
or at least "P-2" (or the then-equivalent thereof) by Xxxxx'x Investors
Service, Inc. and in each case maturing not more than 6 months after the date of
acquisition by the Borrower, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
CLAUSES (I) through (IV) above, and (vi) if such Investment is held by any
non-U.S. Subsidiary of the Borrower, Investments comparable to those in CLAUSES
(I)-(V) above in obligations issued by comparable Persons organized or existing
under the country of incorporation of such Subsidiary, for comparable maturities
and with comparable creditworthiness.
"Termination Date" means the earlier to occur of:
(a) January 15, 2003; and
(b) the date of any termination of the Commitments hereunder
pursuant to SECTION 7.01.
23
31
"Total Commitment Amount" is defined in SECTION 2.02(A).
"Total Leverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of (a) Consolidated Funded Debt to (b) Adjusted EBITDA for the period
of four consecutive Fiscal Quarters ending on such day.
"Total Outstandings" means at any time the sum of the aggregate
principal amount of all Revolving Loans plus the undrawn amount of all
outstanding Letters of Credit plus (without duplication) all outstanding
Reimbursement Obligations plus the aggregate principal amount of all Swing
Loans.
"Trademark Security Agreement" means each security agreement, in
substantially the form of EXHIBIT O-5, executed and delivered by a Subsidiary,
as amended (if applicable) concurrently with the effectiveness of the 1993
Agreement by an amendment substantially in the form of EXHIBIT H-5.
"Transferee" is defined in SECTION 12.03.
"United States" or "U.S." means the United States of America, its fifty
States, the District of Columbia and Puerto Rico.
"Unused Total Commitment Amount" means, for any period, the
average daily amount for such period by which
(a) the Total Commitment Amount on each day during such
period, EXCEEDS
(b) the Total Outstandings (excluding solely for purposes of
calculation of the commitment fee under SECTION 2.03(A), all Swing
Loans) on each day during such period.
"U.S. Person" means any citizen, national or resident of the United
States, any corporation or other entity created or organized in or under the
laws of the United States or any political subdivision thereof or any estate or
trust, in each case that is subject to United States Federal income taxation
regardless of the source of its income.
"U.S. Subsidiary" means a Subsidiary of the Borrower incorporated or
organized under the laws of a state of the United States or substantially all of
the business of which is carried on in the United States.
"Xxxx/Chilmark" means Xxxx/Chilmark Fund, L.P., a Delaware
limited partnership.
SECTION 1.02. INTERPRETATION. In this Agreement and each other Credit
Document, unless a clear contrary intention appears:
24
32
(a) the singular number includes the plural number and
VICE VERSA;
(b) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by the Credit Documents, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including this Agreement and
the Credit Documents), document or instrument means such agreement,
document or instrument as amended or modified and in effect from time
to time in accordance with the terms thereof and, if applicable, the
terms hereof and the other Credit Documents and reference to any
promissory note includes any promissory note which is an extension or
renewal thereof or a substitute or replacement therefor;
(e) reference to any Applicable Law means such Applicable Law
as amended, modified, codified, replaced or reenacted, in whole or in
part, and in effect from time to time, including rules and regulations
promulgated thereunder;
(f) reference to any ARTICLE, SECTION, SCHEDULE or EXHIBIT
means, unless otherwise specified, an ARTICLE or SECTION hereof or a
SCHEDULE or EXHIBIT hereto;
(g) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to this Agreement as a whole and not
to any particular ARTICLE, SECTION or other provision hereof;
(h) "including" (and the correlative meaning "include") means
including without limiting the generality of any description preceding
such term;
(i) relative to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding";
(j) references to financial statements include notes thereto
in accordance with GAAP; and accounting terms used but not defined
herein shall be construed in accordance with GAAP, and whenever the
character or amount of any asset or liability or item of income or
expense is required to be determined, or any consolidation or other
accounting computation is required to be made, for purposes hereof,
such determination or computation shall be made in accordance with
GAAP; PROVIDED that such determinations and computations with respect
to
25
33
financial covenants and ratios hereunder shall be made in accordance
with GAAP as in effect on the date of this Agreement; PROVIDED,
FURTHER, that if there shall be any change in accounting principles
from GAAP as in effect at the Amendment Effective Time, then the
Required Banks shall make adjustments to such financial covenants as
are determined in good faith to be appropriate to reflect such changes
so that the criteria for evaluating the financial condition and
operations of the Borrower shall be the same after such changes as if
such changes had not been made; and
(k) in the event of any direct conflict between any express
provision of this Agreement and any express provision of another Credit
Document, the express provision of this Agreement shall govern.
SECTION 1.03. REALLOCATION OF LOANS AND COMMITMENTS.
(a) The Borrower and each Bank agree that, effective as of the
Amendment Effective Time, this Agreement amends and restates in its entirety the
Existing Agreement. At the Amendment Effective Time, the Commitments of the
Banks shall be reallocated in accordance with the terms hereof and each Bank
shall have a direct or participation share equal to its Percentage of all
outstanding Credit Extensions.
(b) To facilitate the reallocation described in CLAUSE (A), at the
Amendment Effective Time, (i) all loans under the Existing Agreement shall be
deemed to be Loans hereunder, (ii) each Bank which is a party to the Existing
Agreement shall transfer to the Administrative Agent an amount equal to the
excess, if any, of such Banks Percentage of all outstanding Loans hereunder
(including any Loans requested by the Borrower at the Amendment Effective Time)
over the amount of all of such Bank's loans under the Existing Agreement, (iii)
each Bank which is not a party to the Existing Agreement shall transfer to the
Administrative Agent an amount equal to such Bank's Percentage of all
outstanding Loans hereunder (including any Loans requested by the Borrower at
the Amendment Effective Time), (iv) the Administrative Agent shall apply the
funds received from the Banks pursuant to CLAUSES (II) and (III), FIRST, on
behalf of the Banks (pro rata according to the amount of the loans each is
required to purchase to achieve the reallocation described in CLAUSE (A), to
purchase from each Existing Bank which is not a party hereto the loans of such
Existing Bank under the Existing Agreement (and, if applicable to purchase from
any Existing Bank which is a party hereto but which has loans under the Existing
Agreement in excess of such Bank's Percentage of all then-outstanding Loans
hereunder (including any Loans requested by the Borrower at the Amendment
Effective Time), a portion of such loans equal to such excess), SECOND, to pay
to each Existing Bank all interest, fees and other amounts (including amounts
payable to
26
34
Section 3.03 of the Existing Agreement, assuming for such purpose that the loans
under the Existing Agreement were prepaid rather than reallocated at the
Amendment Effective Time) owed to such Existing Bank under the Existing
Agreement (whether or not otherwise then due) and, THIRD, as the Borrower shall
direct, (v) the Borrower shall select new Interest Periods to apply to all Loans
hereunder (or, to the extent the Borrower fails to do so, such Loans shall
become Floating Rate Loans.
(c) The Borrower and the Banks which are Existing Banks (which Existing
Banks, together with certain other Existing Banks which have consented hereto,
constitute the "Required Banks" under and as defined in the Existing Agreement)
hereby agree that, effective as of the Amendment Effective Time, the "Total
Revolving Credit Commitment Amount" under and as defined in the Existing
Agreement shall be reduced to zero.
ARTICLE II
THE CREDIT
SECTION 2.01. COMMITMENTS TO MAKE REVOLVING LOANS. On the terms and subject
to the conditions set forth in this Agreement, each Bank severally (and not
jointly) agrees to make loans to the Borrower (each such loan a "Revolving
Loan"), from time to time during the period from the Amendment Effective Time to
the Termination Date, in an amount equal to such Bank's Percentage of the
aggregate amount of each Advance requested pursuant to SECTION 2.05; PROVIDED
that no Bank shall be permitted or required to make any Revolving Loan if, after
giving effect thereto, the Total Outstandings would exceed the Total Commitment
Amount. Subject to the terms hereof, the Borrower may from time to time borrow,
prepay and reborrow Revolving Loans.
SECTION 2.02. REDUCTIONS OF TOTAL COMMITMENT AMOUNT.
(a) The aggregate amount of all Commitments (the "TOTAL COMMITMENT
AMOUNT") on any date on or prior to the Termination Date shall be $275,000,000
LESS all reductions to such amount made pursuant to CLAUSES (B), (C), (D) and
(E) below.
(b) The Total Commitment Amount shall be reduced on each of the
following dates by the amount set forth opposite such date:
27
35
Amount of
Date Reduction
---- ---------
November 29, 1998 $15,000,000
November 28, 1999 20,000,000
December 3, 2000 30,000,000
December 2, 2001 30,000,000
June 2, 2002 30,000,000.
Any voluntary reduction of the Total Commitment Amount pursuant to
CLAUSE (C) below shall reduce the remaining scheduled reductions of the Total
Commitment Amount by a corresponding amount (such amount to be applied to reduce
such scheduled reductions in chronological order, beginning with the next
scheduled reduction). No reduction of the Total Commitment Amount pursuant to
CLAUSE (D) or (E) below shall reduce any scheduled reduction of the Total
Commitment Amount pursuant to this CLAUSE (B).
(c) The Borrower may permanently reduce the Total Commitment Amount in
whole, or in part in a minimum aggregate amount of $5,000,000 or in larger
integral multiples of $1,000,000, upon at least five Business Days' written
notice to the Administrative Agent, which notice shall specify the amount of any
such reduction; PROVIDED that the Total Commitment Amount may not be reduced
below the Total Outstandings.
(d) The Total Commitment Amount shall be reduced no later than 45 days
after receipt by the Borrower or any of its Subsidiaries of any Net Disposition
Proceeds in excess of $15,000,000 in any Fiscal Year by an amount equal to 100%
of such excess Net Disposition Proceeds.
(e) The Total Commitment Amount shall be reduced five days after
receipt by the Borrower of any Net Debt Proceeds from the sale or incurrence of
any Permitted Senior Debt or Subordinated Debt by an amount equal to 50% of such
Net Debt Proceeds.
(f) All reductions of the Total Commitment Amount shall ratably reduce
the Commitments of the Banks according to their Percentages.
SECTION 2.03. FEES.
(a) COMMITMENT FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Bank a commitment fee at the Commitment Fee Rate
on such Bank's Percentage of the Unused Total Commitment Amount from the
Amendment Effective Time to the Termination Date, payable in arrears on each
Quarterly Payment Date, commencing with the first such date following the
Amendment Effective Time, and on the Termination Date, in each case for the
28
36
period then ended for which such commitment fee shall not have been theretofore
paid.
(b) AGENT'S FEES. The Borrower agrees to pay to each of the
Administrative Agent, NationsBank, as Syndication Agent, and Paribas, as
Documentation Agent, fees in such amounts and at such times as are agreed in the
applicable Fee Letter.
SECTION 2.04. METHOD OF BORROWING OF REVOLVING LOANS; RATABLE LOANS.
(a) Not later than 12 noon, Chicago time, on each Borrowing Date for Revolving
Loans, each Bank shall make available its Revolving Loan or Loans in immediately
available funds, in Chicago, to the Administrative Agent at its address
specified pursuant to ARTICLE XIII. Subject to the satisfaction of the
conditions precedent to such Revolving Loans, the Administrative Agent will make
the funds so received from the Banks available to the Borrower at the
Administrative Agent's aforesaid address.
(b) Each Advance shall consist of Loans made from the several Banks
ratably in proportion to their Percentages.
SECTION 2.05. METHOD OF SELECTING RATE OPTIONS AND INTEREST PERIODS;
TELEPHONIC NOTICES. (a) The Borrower shall give the Administrative Agent
irrevocable notice, in the form of EXHIBIT D (a "BORROWING NOTICE") not later
than 11:00 a.m., Chicago time, at least one Business Day before the Borrowing
Date of each Floating Rate Advance and at least three Business Days before the
Borrowing Date for each Eurodollar Rate Advance, specifying:
(i) the proposed Borrowing Date, which shall be a
Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Rate Option selected for such Advance, and
(iv) in the case of each Eurodollar Rate Advance, the Interest
Period applicable thereto.
(b) The Borrower hereby authorizes the Banks and the Administrative
Agent to extend Advances and effect Rate Option selections based on telephonic
notices made by any person or persons the Administrative Agent or any Bank in
good faith believes to be acting on behalf of the Borrower. The Borrower agrees
to deliver promptly to the Administrative Agent a written confirmation of each
telephonic notice signed by an Authorized Employee. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Banks, the records of the Administrative Agent and the Banks shall
govern absent manifest error.
29
37
SECTION 2.06. AMOUNT OF EACH ADVANCE. Each Eurodollar Rate Advance
shall be in a principal amount of $5,000,000 or a higher integral multiple of
$500,000, and each Floating Rate Advance shall be in a principal amount of
$3,000,000 or a higher integral multiple of $500,000; PROVIDED that any Floating
Rate Advance made on any date may be in the amount by which the Total Commitment
Amount on such date EXCEEDS the Total Outstandings on such date; and PROVIDED,
FURTHER, that the principal amount of any Floating Rate Advance made to repay
Swing Loans in accordance with SECTION 2.07(C)(I) may be in the principal amount
required to repay such Swing Loans.
SECTION 2.07. SWING LOANS.
(a) MAKING OF SWING LOANS. BAI may elect in its sole discretion to make
revolving loans ("SWING LOANS") to the Borrower solely for the account of BAI
from time to time on or after the Amendment Effective Time and prior to the
Termination Date up to an aggregate principal amount at any one time outstanding
not to exceed $20,000,000; PROVIDED that BAI shall not make any Swing Loan which
would cause the Total Outstandings to exceed the Total Commitment Amount. Each
Swing Loan shall be in a principal amount of $200,000 or a higher integral
multiple of $100,000. BAI may make Swing Loans (subject to the conditions
precedent set forth in SECTION 4.01, except SECTION 4.01.01 which shall be
deemed satisfied by the terms of this sentence); PROVIDED that (x) BAI has
received a request in writing or via telephone from an Authorized Employee of
the Borrower for funding of a Swing Loan no later than 12 noon, Chicago time, on
the Business Day on which such Swing Loan is requested to be made and (y) BAI
has promptly notified the Administrative Agent in writing or via telephone of
such request from the Borrower. BAI shall not make any Swing Loan in the period
commencing one Business Day after BAI receives notice that one or more of the
conditions precedent contained in SECTION 4.01 is not satisfied and ending upon
the satisfaction or waiver of such condition(s). Each outstanding Swing Loan
shall be payable on the Business Day following demand therefor in accordance
with SECTION 2.07(C), shall be secured as part of the Obligations by the
Collateral and shall otherwise be subject to all the terms and conditions
applicable to Revolving Loans, except that all interest thereon shall be payable
to the Administrative Agent solely for the account of BAI.
(b) SWING LOAN BORROWING CONFIRMATIONS. The Borrower agrees to deliver
promptly to each of BAI and the Administrative Agent a written confirmation of
each telephonic notice for a Swing Loan signed by an Authorized Employee. If the
written confirmation differs in any material respect from the action taken by
BAI, the records of BAI shall govern, absent manifest error.
30
38
(c) REPAYMENT OF SWING LOANS.
(i) At or prior to 9 a.m., Chicago time, on any Business Day
after making a Swing Loan, BAI may request the Borrower to, and upon
such request the Borrower shall, promptly borrow Revolving Loans from
all the Banks and apply the proceeds of such Revolving Loans to the
repayment of the principal amount of any Swing Loan owing by the
Borrower not later than the Business Day following such request;
PROVIDED that any such request made after 9 a.m., Chicago time, on any
Business Day, shall be deemed to have been made prior to 9 a.m.,
Chicago time, on the immediately succeeding Business Day.
Notwithstanding the foregoing, upon the earlier to occur of (A) one
Business Day after demand is made by BAI upon each Bank (of which
demand BAI or the Administrative Agent shall notify the Borrower) and
(B) the Termination Date, each Bank (other than BAI) shall irrevocably
and unconditionally purchase from BAI, without recourse or warranty, an
undivided interest and participation in the Swing Loans in an amount
equal to such Bank's Percentage thereof, and each Bank shall promptly
pay such amount to the Administrative Agent, for the sole account of
BAI, in immediately available funds. Such payment shall be made by the
other Banks whether or not a Default is then continuing or any other
condition precedent set forth in SECTION 4.01 is then met and whether
or not the Borrower has then requested an Advance in such amount; and
each such Swing Loan shall thereupon be deemed to be a Floating Rate
Advance hereunder made on the date of such purchase (notwithstanding,
as aforesaid, the existence of any Default or the failure to meet any
condition precedent specified in SECTION 4.01 on such date). If and to
the extent that any such payment is not in fact made to the
Administrative Agent by any Bank, the Borrower and such Bank shall be
jointly and severally liable to BAI for such payment, such amount to be
payable on demand together with accrued interest thereon from the due
date therefor until the date such amount is paid to the Administrative
Agent (x) in the case of the Borrower, at the Floating Rate and (y) in
the case of such Bank, at the Federal Funds Rate for the first three
Business Days after such Bank receives notice of such required purchase
and thereafter at the Floating Rate. The failure of any Bank to pay
such amount to the Administrative Agent shall not relieve any other
Bank of its obligation to pay such amount hereunder.
(ii) Upon the making of any Advance pursuant to a Borrowing
Notice, any Swing Loan then outstanding shall be repaid in full, and
the Borrower hereby irrevocably authorizes the Administrative Agent to
apply all or any necessary portion of the proceeds of any such Advance
to the repayment of any Swing Loan then outstanding.
31
39
SECTION 2.08. NOTES. The Loans of each Bank shall be evidenced:
(a) in the case of Revolving Loans, by a global promissory note of the
Borrower substantially in the form of EXHIBIT A (the "GLOBAL REVOLVING NOTE"),
payable to the order of the Administrative Agent in an original principal amount
equal to $275,000,000 or, if less, the principal amount of all Revolving Loans
at any time outstanding, and
(b) in the case of Swing Loans by a promissory note of the Borrower
substantially in the form of EXHIBIT B (the "SWING NOTE"), payable to the order
of the Administrative Agent in an original principal amount equal to $20,000,000
or, if less, the principal amount of Swing Loans at any time outstanding.
(c) The Administrative Agent shall hold the Global Revolving Note for
the ratable benefit of each Bank, and the Global Revolving Note shall evidence
each Bank's Percentage of the aggregate outstanding Revolving Loans. The
Administrative Agent shall hold the Swing Note for the benefit of BAI.
(d) The Administrative Agent shall record in its records, or at its
option on the schedule attached to the applicable Note, the date and amount of
each Loan, each repayment or prepayment thereof, and, in the case of any
Eurodollar Rate Loans, the dates on which each Interest Period for such Loan
shall begin and end. The aggregate unpaid principal amount so recorded shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Note. The failure to so record or any error in so recording any such amount in
such records or on such schedule shall not, however, limit or otherwise affect
the obligations of the Borrower hereunder or under any Note to repay the
principal amount of the applicable Loans together with all interest accruing
thereon.
As of the Amendment Effective Time, each of the promissory notes issued
under the Existing Agreement shall be null and void (having been replaced by the
Notes hereunder).
SECTION 2.09. FINAL MATURITY. Without limiting any of the other
provisions hereof regarding payments, all Loans and all other Obligations shall
be due and payable in full on the Termination Date.
SECTION 2.10. OPTIONAL PRINCIPAL PREPAYMENTS.
(a) The Borrower may, by giving a Repayment Notice (which shall be
irrevocable) to the Administrative Agent not later than 11:00 a.m., Chicago
time, one Business Day prior to any prepayment of a Floating Rate Advance and
two Business Days prior to any prepayment of a Eurodollar Rate Advance, prepay
any Advance in
32
40
whole at any time or from time to time in part. Each partial prepayment of an
Advance pursuant to this CLAUSE (A) shall be in a principal amount of $5,000,000
or a higher integral multiple of $500,000, in the case of Eurodollar Rate
Advances, and $3,000,000 or a higher integral multiple of $500,000, in the case
of Floating Rate Advances (and if, after giving effect to any such prepayment,
the amount of any Eurodollar Rate Advance is less than $5,000,000, such Advance
shall automatically convert to a Floating Rate Advance). Any prepayment of a
Eurodollar Rate Advance shall (a) be accompanied by unpaid accrued interest
thereon to the date of prepayment and (b) if made on a day other than the last
day of an Interest Period therefor, be subject to SECTION 3.03.
(b) The Borrower may, by notice to BAI and the Administrative Agent not
later than 12 noon, Chicago time, on any Business Day, prepay any Swing Loan in
whole or in part from time to time. Each partial prepayment of a Swing Loan
shall be in a minimum principal amount of $200,000 or a higher integral multiple
of $100,000.
(c) Each prepayment made pursuant to this SECTION 2.10 shall be made on
a Business Day. No prepayment made pursuant to this SECTION 2.10 shall, in and
of itself, cause a reduction in the Total Commitment Amount.
SECTION 2.11. MANDATORY PREPAYMENTS RESULTING FROM COMMITMENT
REDUCTIONS. Concurrently with any reduction of the Total Commitment Amount
pursuant to SECTION 2.02(B), (D) or (E), the Borrower shall make a prepayment of
Loans (or otherwise reduce the Total Outstandings) in the amount, if any, by
which the Total Outstandings exceed the Total Commitment Amount as so reduced.
Each prepayment made pursuant to this SECTION 2.11 shall (x) be accompanied by a
Repayment Notice of the Borrower, dated as of the date of such payment, and (y)
be without premium or penalty, except as may be required by SECTION 3.03.
SECTION 2.12. RATE OPTIONS; INTEREST PAYMENT DATES; INTEREST BASIS;
PAYMENTS DUE ON DAYS NOT BUSINESS DAYS. Advances may be Floating Rate Advances
or Eurodollar Rate Advances, or a combination thereof, selected by the Borrower
in accordance with SECTION 2.05 or 2.18. Swing Loans shall bear interest at the
Floating Rate. Except as provided in SECTION 2.13, Floating Rate Advances and
Swing Loans shall bear interest at the Floating Rate and Eurodollar Rate
Advances shall bear interest at the Eurodollar Rate. Interest accrued on each
Eurodollar Rate Advance shall be payable on the last day of each Interest Period
therefor, on the Termination Date, on any date on which such Advance is prepaid
(whether due to acceleration or otherwise) and, with respect to any Interest
Period of six months, at the date three months after the beginning of such
Interest Period. Interest accrued on each Floating Rate Advance and each Swing
Loan shall be payable on each Quarterly Payment Date and on the Termination
Date. Interest and
33
41
fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable by the Borrower for the day an Advance or Swing Loan
is made but not for the day of any payment on the amount paid if payment is
received prior to 12 noon, local time, at the place of payment provided herein.
If any payment of principal of or interest on an Advance or Swing Loan or any
fee or other amount payable hereunder shall become due on a day which is not a
Business Day, such payment shall be made on the immediately succeeding Business
Day, and such extension of time shall be included in computing interest in
connection with such payment in the case of a principal payment.
SECTION 2.13. RATE AFTER DEFAULT.
(a) During the existence of any Event of Default, each Floating Rate
Advance and each Swing Loan shall bear interest, payable upon demand, until
payment in full at a rate per annum equal to the Floating Rate in effect from
time to time PLUS 2.0% per annum (the "DEFAULT RATE").
(b) During the existence of any Event of Default, each Eurodollar Rate
Advance shall bear interest, payable upon demand, (i) until the earlier of (A)
payment in full of such Advance, or (B) the end of the applicable Interest
Period, at the Eurodollar Rate then applicable to such Advance PLUS 2.0% per
annum, and (ii) thereafter at the Default Rate until paid in full.
SECTION 2.14. METHOD OF PAYMENT; APPLICATION OF PAYMENT. All payments
of principal, interest and fees hereunder shall be made in Dollars in
immediately available funds to the Administrative Agent at the Administrative
Agent's address specified pursuant to ARTICLE XIII (or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower) by 12 noon, Chicago time, on the date when
due, accompanied by a Repayment Notice, and shall be made ratably among the
Banks. Each payment delivered to the Administrative Agent for the account of
any Bank shall be delivered promptly by the Administrative Agent to such Bank in
the same type of funds which the Administrative Agent received at its address
specified pursuant to ARTICLE XIII or at any Lending Installation specified in a
notice received by the Administrative Agent from such Bank. Prior to the
occurrence of an Event of Default and either termination of the Commitments or
acceleration of the Loans hereunder, the Administrative Agent and the Banks
shall apply such payments as provided in the applicable Repayment Notice.
Following the occurrence of any Event of Default and either termination of the
Commitments or acceleration of the Loans hereunder, the Administrative Agent and
the Banks shall apply such payments and any amounts realized from the Collateral
as provided in the Collateral Documents to the extent provided therein, and if
not
34
42
provided therein, PRO RATA in proportion to the outstanding Obligations owed to
each Bank.
SECTION 2.15. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
TOTAL COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Administrative
Agent will notify each Bank of the contents of each Total Commitment Amount
reduction notice, Borrowing Notice and Repayment Notice received by it
hereunder. The Administrative Agent will notify each Bank and the Borrower of
the interest rate applicable to each Interest Period for a Eurodollar Rate
Advance promptly upon determination of such interest rate and will give each
Bank and the Borrower prompt notice of each change in the Corporate Base Rate.
All determinations by the Administrative Agent of any rate of interest
applicable to any Loan shall be conclusive in the absence of manifest error.
SECTION 2.16. LENDING INSTALLATIONS. Subject to SECTION 3.04, each Bank
may book its Loans at any Lending Installation selected by such Bank and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Notes shall be deemed held
by the Administrative Agent for the benefit of any such Lending Installation.
Each Bank may, by written or facsimile notice to the Administrative Agent and
the Borrower, designate a Lending Installation through which Loans will be made
by it and for whose account Loan payments are to be made. Notwithstanding any
such designation of a Lending Installation by a Bank, such Bank shall remain
solely responsible to the other parties hereto for the performance of its
obligations hereunder.
SECTION 2.17. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless
the Borrower or a Bank, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Bank, the proceeds of a Loan, or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Banks, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If and to the extent that any Bank or the Borrower, as the case may
be, has not in fact made such payment to the Administrative Agent, the Person
obligated to make such payment and the recipient of such payment shall be
jointly and severally obligated to repay to the Administrative Agent the amount
so made available, such amount to be payable on demand together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until the date the
Administrative Agent
35
43
recovers such amount at a rate per annum equal to (x) in the case of payment by
a Bank, the Federal Funds Rate for the first three Business Days after demand by
the Administrative Agent and thereafter at the interest rate applicable to the
relevant Loan and (y) in the case of payment by the Borrower, the Floating Rate
(or, if applicable, the Default Rate).
SECTION 2.18. CONTINUATION AND CONVERSION ELECTIONS. Pursuant to a
Continuation/Conversion Notice delivered to the Administrative Agent on or
before 11:00 a.m., Chicago time, the Borrower may elect, from time to time on
not less than three Business Days' notice (or not less than one Business Day's
notice in the case of conversions to Floating Rate Loans):
(a) that all, or any portion in a principal amount of
$5,000,000 or a higher integral multiple of $500,000, of any Advance be
converted from Floating Rate Loans into Eurodollar Rate Loans (or,
subject to SECTION 3.03, from Eurodollar Rate Loans into Floating Rate
Loans); and
(b) on the expiration of the Interest Period applicable to any
Eurodollar Rate Loans comprising all or part of any Advance, that all,
or any portion in a principal amount of $5,000,000 or a higher integral
multiple of $500,000, of the outstanding principal amount of such
Advance be continued as Eurodollar Rate Loans or all or any portion in
a minimum principal amount of $3,000,000 be converted into Floating
Rate Loans;
PROVIDED that:
(i) no portion of the outstanding principal amount of
any Advance may be continued as, or converted into, Eurodollar
Rate Loans after any notice of Default is due or has been
given pursuant to SECTION 6.01.06(A)(I) and the relevant
Default is continuing;
(ii) no portion of the outstanding principal amount
of any Advance may be made or continued as, or converted into,
Floating Rate Loans or Eurodollar Rate Loans unless, after
giving effect to such action, the principal amount of Loans of
each type outstanding from each Bank then being so made,
continued or converted shall be equal to such Bank's
Percentage of the outstanding principal amount of the Advance
then being so made, continued or converted;
(iii) no portion of the outstanding principal amount
of any Advance may be made or continued as, or converted into,
Eurodollar Rate Loans or Floating Rate Loans if, after giving
effect to such action, the
36
44
aggregate principal amount of any Eurodollar Rate Advance
would be less than $5,000,000;
(iv) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have
expiration dates falling on more than 10 different dates; and
(v) absent the timely selection of a new Interest
Period for a then outstanding Eurodollar Rate Advance, such
Eurodollar Rate Advance shall, immediately upon the expiration
of such Interest Period, automatically and without further
action be converted into a Floating Rate Advance.
The Borrower shall, in each Continuation/Conversion Notice electing that all, or
any portion, of the principal amount of Advances of any type be continued as, or
be converted into, Eurodollar Rate Advances, select the duration of the Interest
Period commencing upon such continuation or conversion.
SECTION 2.19. NET PAYMENTS; TAX EXEMPTIONS.
(a) All payments by the Borrower of principal, interest, fees,
indemnities and other amounts payable hereunder and under the Notes shall be
made without setoff or counterclaim and free and clear of, and without
withholding or deduction for or on account of, any present or future Taxes
(other than Excluded Taxes) now or hereafter imposed on such recipient or its
income, property, assets or franchises (such recipient's "RECIPIENT TAXES"),
except to the extent that such withholding or deduction (i) is required by
Applicable Law, (ii) results from the breach by such recipient of its Exemption
Agreement (as hereinafter defined) or (iii) would not be required if such
recipient's Exemption Representation (as hereinafter defined) were true. If any
such withholding or deduction is required by Applicable Law, the Borrower will:
(A) pay to the relevant authorities the full amount so
required to be withheld or deducted;
(B) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authorities; and
(C) except to the extent that such withholding or deduction
results from the breach, by a recipient of a payment, of its Exemption
Agreement or would not be required if such recipient's Exemption
Representation were true, pay to the Administrative Agent for the
account of the relevant recipient such additional amount as is
necessary to ensure
37
45
that the net amount actually received by each recipient will equal the
full amount such recipient would have received had no such withholding
or deduction been required.
(b) In consideration of the Borrower's agreements in SECTION 2.19(A),
each Bank which is not a U.S. Person hereby agrees (such Bank's "EXEMPTION
AGREEMENT"), to the extent permitted by Applicable Law (including any applicable
double taxation treaty of the jurisdiction of its incorporation and the
jurisdiction in which its Lending Installation is located), to execute and
deliver to the Borrower (i) on or before the first scheduled payment date after
the Amendment Effective Time, a United States Internal Revenue Service Form 1001
or 4224 as appropriate (or successor forms), properly completed and claiming a
complete or partial exemption, as the case may be, from withholding or deduction
for or on account of Recipient Taxes of such Bank, and (ii) a new Form 1001 or
4224 (or successor form), as appropriate, upon the expiration or obsolescence of
any previously delivered Form.
(c) Each Bank which is not a U.S. Person hereby represents and warrants
(such Bank's "EXEMPTION REPRESENTATION") to the Borrower that at the Amendment
Effective Time, its Lending Installation is entitled to receive payments of
principal of, and interest on, Loans made by such Bank from such Lending
Installation without withholding or deduction for or on account of such Bank's
Recipient Taxes imposed by the United States or any political subdivision
thereof.
SECTION 2.20. LETTERS OF CREDIT.
SECTION 2.20.01. ISSUANCE OF LETTERS OF CREDIT. On the
terms and subject to the conditions set forth in this Agreement:
(a) Any Issuer may in its sole discretion issue from time to
time on or after the Amendment Effective Time and prior to the
Termination Date one or more irrevocable Letters of Credit on behalf of
and for the account of the Borrower or any Subsidiary, each of which
Letters of Credit shall be denominated in Dollars and issued to support
obligations of the Borrower or a Subsidiary incurred in the ordinary
course of business; and
(b) Paribas as Issuer has issued, prior to the Amendment
Effective Time, the Letters of Credit listed on SCHEDULE 2.20.01(B),
and each such Letter of Credit shall be deemed to be outstanding under
this Agreement after giving effect to the Amendment Effective Time for
all purposes of this Agreement and each of the other Credit Documents,
and each Bank will be deemed to have an undivided participation in each
such Letter of Credit to the extent of its Percentage in accordance
with SECTION 2.20.05;
38
46
PROVIDED that no Letter of Credit shall be issued (a) unless the applicable
Issuer has received confirmation from the Administrative Agent that the
applicable Issuance Request is in acceptable form or (b) if after the issuance
thereof the Total Outstandings would exceed the Total Commitment Amount or if
the sum of the undrawn stated amount of all outstanding Letters of Credit plus
the unpaid Reimbursement Obligations would exceed $25,000,000.
SECTION 2.20.02. ISSUANCE REQUESTS.
(a) By delivering a duly completed issuance request (an "ISSUANCE
REQUEST") in the form of EXHIBIT E-1, accompanied by a duly completed
application for a Letter of Credit, on or before 11:00 a.m., Chicago time, at
least two Business Days prior to the requested Business Day of issuance, to the
Administrative Agent and the applicable Issuer, the Borrower may request the
issuance from time to time of Letters of Credit; IT BEING UNDERSTOOD that such
Issuer may require by notice to the Borrower a postponement of such requested
issuance date to the extent reasonably necessary for the preparation and
negotiation of such Letter of Credit and all related documentation. Each
Issuance Request and application shall be irrevocable, and upon its receipt
thereof, the Administrative Agent shall promptly notify the Banks thereof.
Issuance Requests and applications (and all attachments thereto) may be
delivered to the Administrative Agent and the applicable Issuer by facsimile or
telex if such deliveries are confirmed with the delivery of the original
executed Issuance Requests and applications (and all attachments thereto) to
such Persons not later than two Business Days prior to the date of issuance. The
Administrative Agent shall promptly notify the applicable Issuer and the
Borrower if, after giving effect to the issuance of any requested Letter of
Credit, the limitation set forth in the PROVISO to SECTION 2.20.01 would be
violated.
(b) Each Letter of Credit shall be in a form mutually
satisfactory to the applicable Issuer and the Borrower and shall,
by its terms,
(i) be stated to expire on a date (its "STATED EXPIRY DATE")
not later than the earlier of (A) one year after the date of issuance
thereof and (B) 25 days prior to the scheduled Termination Date,
(ii) unless the Administrative Agent shall otherwise agree,
terminate on or prior to its Stated Expiry Date immediately upon notice
to the applicable Issuer from the beneficiary thereunder that all
obligations covered thereby have been terminated, paid or otherwise
satisfied in full, and
(iii) provide for payment not earlier than three
Business Days (unless the applicable Issuer shall otherwise
39
47
agree) after demand for payment under such Letter of Credit and full
satisfaction of the conditions precedent thereto, and provide solely
for payment upon the presentation of a sight draft rather than a time
draft.
(c) Each Issuer shall make the original of each Letter of Credit it
issues available (but in the case of replacement Letters of Credit, only against
delivery by such beneficiary of the Letter of Credit being replaced) to the
beneficiary indicated in the respective Issuance Request (and provide on the
date of issuance a copy thereof to the Administrative Agent).
SECTION 2.20.03. AMENDMENTS. Any extension of the Stated Expiry Date,
increase in the stated amount, or other modification of a Letter of Credit shall
be made only upon satisfaction of all of the procedures and conditions for the
issuance of a new Letter of Credit of the same type, except that the Borrower's
request therefor shall be in the form of EXHIBIT E-2 (a "LETTER OF CREDIT
AMENDMENT REQUEST").
SECTION 2.20.04. LETTER OF CREDIT FEES. (a) The Borrower agrees to pay
to the Administrative Agent with respect to each Letter of Credit, for the
account of the applicable Issuer and each other Bank, ratably in accordance with
their respective Percentages, accrual fees at the applicable L/C Fee Rate for a
Letter of Credit of such type (calculated in each case from and including the
date of issuance (or date of renewal or extension, if any) thereof to but not
including the Stated Expiry Date thereof or, if earlier, the date upon which
such Letter of Credit is cancelled, fully drawn or terminated), in each case on
the daily average undrawn stated amount thereof, payable in arrears for each
Fiscal Quarter within 10 days after the Borrower's receipt of any statement of
such fees provided by the Administrative Agent for such Fiscal Quarter; PROVIDED
that during the existence of any Event of Default, each of such accrual fees
shall be increased by 2.0% per annum.
(b) The Borrower further agrees to pay upon demand made by each Issuer
from time to time, solely to such Issuer:
(i) all reasonable and customary fees and expenses of such
Issuer, as advised by such Issuer from time to time, in connection with
the issuance, negotiation, maintenance, modification (if any),
amendment, renewal, administration and collection of, or drawing under,
Letters of Credit issued by such Issuer; and
(ii) without duplication of payments made under ARTICLE III,
any applicable reserve, assessment, insurance charge, premium or levy
imposed on such Issuer by any governmental
40
48
authority, including Federal Deposit Insurance Corporation
assessments and charges.
(c) The Borrower further agrees to pay to each Issuer solely for its
own account such other fees as may be agreed from time to time by the Borrower
and such Issuer.
SECTION 2.20.05. OTHER BANKS' PARTICIPATIONS; REIMBURSEMENTS.
(a) Each Letter of Credit shall, effective upon issuance and without
further action (or, if issued prior to the Amendment Effective Time, effective
at the Amendment Effective Time), be issued on behalf of all Banks (including
the Issuer thereof) in accordance with the immediately succeeding sentence, in
each case PRO RATA according to each Bank's Percentage. Each Bank shall be
deemed to have irrevocably purchased a participation in the amount of its
Percentage in each Letter of Credit issued on its behalf and shall reimburse
promptly the Issuer thereof for Reimbursement Obligations not reimbursed in
accordance with SECTION 2.20.07 by the Borrower, or which have been reimbursed
by the Borrower but must be returned, restored or disgorged by such Issuer for
any reason, and each Bank (including such Issuer) shall, to the extent of its
Percentage, be entitled to receive from the Administrative Agent a ratable
portion of the fees received by the Administrative Agent, pursuant to SECTION
2.20.04(A), with respect to such Letter of Credit.
(b) If the Borrower fails to satisfy its obligations set forth in
SECTIONS 2.20.06 and 2.20.07 to reimburse any Issuer in an amount equal to the
amount of any drawing honored by such Issuer under a Letter of Credit, such
Issuer shall promptly notify the Administrative Agent and each Bank of the
unreimbursed amount of such drawing and of such Bank's respective participation
therein. If such notice is delivered, each Bank shall make available to such
Issuer, whether or not any Default shall have occurred and is continuing, an
amount equal to the amount of such participation, in same day or immediately
available funds, at such Issuer's office specified in such notice, not later
than 12 noon, Chicago time, on the Business Day after the date notified by such
Issuer. If any Bank fails to make available to such Issuer, as provided herein,
the amount of such participation, such Issuer shall be entitled to recover such
amount, together in each case with interest thereon at the Federal Funds Rate
for three Business Days and thereafter at the Floating Rate, (x) on demand to
such Bank, (y) by setoff against any payments made to such Issuer hereunder for
the account of such Bank, or (z) by payment to such Issuer by the Administrative
Agent of amounts otherwise payable to such Bank under this Agreement. Each Bank
hereby authorizes the Administrative Agent to make the payments described in
CLAUSE (Z) of the preceding sentence. Nothing in this Section shall be deemed
41
49
to prejudice the right of any Bank to recover from any Issuer any amount made
available by such Bank to such Issuer pursuant to this Section if a court of
competent jurisdiction determines that the making of any payment by such Issuer
with respect to its Letter of Credit, and in respect of which a participation
payment was made by such Bank, constituted gross negligence or willful
misconduct on the part of such Issuer. Each Issuer shall (to the extent it has
received funds from the other Banks pursuant to the foregoing provisions of this
Section) transfer to the Administrative Agent, not later than the Business Day
following receipt, all payments received by such Issuer from the Borrower in, or
otherwise applied to, reimbursement of drawings honored by such Issuer under any
Letter of Credit and the Administrative Agent shall promptly distribute to each
Bank that has paid all amounts payable by such Bank under this Section with
respect to any Letter of Credit, such Bank's Percentage of such payments.
SECTION 2.20.06. DISBURSEMENTS. The applicable Issuer will notify the
Administrative Agent and the Borrower in writing no later than the Business Day
following receipt of the presentment of any demand for payment under any Letter
of Credit, together with notice of the amount of such payment and the date (the
"DISBURSEMENT DATE") such payment shall be made. Subject to the terms and
provisions of such Letter of Credit, such Issuer shall make such payment
("DISBURSEMENT") to the respective beneficiary (or its designee). Prior to 12
noon, Chicago time, on the applicable Disbursement Date, the Borrower shall
reimburse such Issuer for such Disbursement. To the extent such Issuer is not,
by 12 noon, Chicago time, on the Disbursement Date of any Disbursement under a
Letter of Credit, reimbursed in full by the Borrower, such unreimbursed (or any
returned or disgorged) amount shall accrue interest on and after such date at
the Default Rate, payable on demand.
SECTION 2.20.07. REIMBURSEMENT. The obligations of the Borrower
("REIMBURSEMENT OBLIGATIONS") under SECTION 2.20.06 to reimburse the applicable
Issuer for each Disbursement (including interest thereon) made under such
Issuer's Letters of Credit, and the obligations of each Bank under SECTION
2.20.05 to make participation payments in each unreimbursed, returned or
disgorged drawing thereunder, shall be, to the fullest extent permitted by
Applicable Law, absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Administrative Agent, any Issuer, any
Bank or the beneficiary of any Letter of Credit, including any defense based
upon the occurrence of any Default, any draft, demand or certificate or other
document presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient or any non-application or misapplication by such
beneficiary of the proceeds of such
42
50
Disbursement, or the legality, validity, form, regularity or enforceability of
such Letter of Credit.
SECTION 2.20.08. DEEMED DISBURSEMENTS. Upon the occurrence and during
the continuation of any Event of Default, amounts equal to the respective
amounts undrawn and available under each Letter of Credit shall, at the option
of the Administrative Agent or at the direction of the Required Banks and
without demand upon or notice to the Borrower, be deemed to have been paid or
disbursed by the Issuers (notwithstanding that such amounts may not in fact have
been so paid or disbursed) and, upon notification by the Administrative Agent to
the Issuers and the Borrower of the Borrower's obligations under this Section,
the Borrower shall be immediately obligated to reimburse the Administrative
Agent for the benefit of each Issuer the amount deemed to have been so paid or
disbursed with respect to the Letters of Credit; PROVIDED that, with respect to
any such amounts deemed disbursed but not reimbursed by the Borrower to the
Administrative Agent, such amounts shall not be deemed to bear interest until
such time as a Reimbursement Obligation with respect thereto shall arise. All
amounts so received by the Administrative Agent from the Borrower pursuant to
this Section shall be held as collateral security for the repayment of the
Borrower's obligations in connection with the Letters of Credit. To the extent
the aggregate amount deposited by the Borrower with the Administrative Agent
pursuant to this Section and not previously applied by the Administrative Agent
to any Reimbursement Obligation exceeds the sum of (x) the aggregate undrawn
stated amounts of all Letters of Credit PLUS (y) all unpaid Reimbursement
Obligations, the Administrative Agent will promptly return the amount of such
excess to the Borrower (except to the extent applied by the Administrative Agent
to the payment of amounts then due and owing hereunder). When all Events of
Default have been cured or waived, the Administrative Agent shall promptly
return to the Borrower all amounts, including interest as described in the
immediately succeeding sentence, then on deposit pursuant to this Section with
the Administrative Agent. All amounts on deposit pursuant to this Section shall,
until their application to any Reimbursement Obligation or their return to the
Borrower, bear interest at the Federal Funds Rate from time to time in effect
(net of the costs of any reserve requirements, in respect of amounts on deposit
pursuant to this SECTION 2.20.08, pursuant to Regulation D), which interest
shall be held by the Administrative Agent as additional collateral security for
the repayment of the Reimbursement Obligations of the Borrower in connection
with the Letters of Credit.
SECTION 2.20.09. NATURE OF REIMBURSEMENT OBLIGATIONS. The
Borrower shall assume all risks of acts, omissions or misuse by the
beneficiary of each Letter of Credit issued on behalf of the
Borrower or any Subsidiary. Neither the Issuer thereof (except to
43
51
the extent of its own gross negligence or willful misconduct), any Bank nor the
Administrative Agent shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of such Letter of Credit or any particular conditions
stipulated in the documents or superimposed thereon, or any document
presented under such Letter of Credit, or any document submitted by
any party in connection with the application for and issuance of such
Letter of Credit, even if it should be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign such Letter of Credit or the rights or benefits
thereunder or proceeds thereof in whole or in part, which instrument
may be invalid or ineffective for any reason;
(c) failure of such beneficiary to comply fully with conditions
required to demand payment under such Letter of Credit (other than the
delivery of documents which on their face substantially comply with
the requirements for drawing thereunder);
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, facsimile, telex or
otherwise;
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under such
Letter of Credit or of the proceeds thereof;
(f) the existence of the property purporting to be represented by
documents;
(g) any difference in character, quality, quantity, condition or
value between any property description in documents presented under
the Letter of Credit and the property purporting to be represented by
such documents;
(h) partial or incomplete shipment or failure or omission to ship
any and all of the property referred to in such Letter of Credit;
(i) the character, validity, adequacy or genuineness of any
insurance or any risk connected with insurance;
44
52
(j) any deviation from instructions, delay, default or fraud by
the shipper or anyone else in connection with the property or shipment
thereof;
(k) the solvency, responsibility or relationship to the property
of any Person issuing any documents relating thereto;
(l) any delay in giving or failure to give any necessary notices;
(m) any breach of contract between the shippers or vendors and
the Borrower; or
(n) the failure of any instrument to bear any reference or
adequate reference to such Letter of Credit, or the failure of any
draft to be accompanied by documents at negotiation, or the failure of
any Person to note the amount of any draft on the reverse of such
Letter of Credit or to surrender or take up such Letter of Credit or
to send forward documents apart from drafts as required by the terms
of such Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any rights
or powers granted the Issuer thereof or any Bank or the Administrative Agent
hereunder. In furtherance of any of the foregoing, any action taken or omitted
to be taken by the Issuer of a Letter of Credit in good faith shall be binding
upon the Borrower and shall not put such Issuer under any resulting liability to
any Person.
ARTICLE III
CHANGE IN CIRCUMSTANCES
SECTION 3.01. YIELD PROTECTION. (a) If any Applicable Law or any
governmental or regulatory policy, guideline or directive (whether or not having
the force of law), or any interpretation thereof, adopted or changed after the
Amendment Effective Time, or compliance of any Bank with such,
(i) subjects any Bank or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (other than Excluded Taxes), or changes the basis of
taxation (excluding changes in tax rates applicable to Excluded Taxes)
of payments to any Bank in respect of its Commitment, Credit Extensions
or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against commitments by, assets of,
45
53
deposits with or for the account of, or credit extended by, any Bank or
any applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest rate
applicable to Eurodollar Rate Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Bank or any applicable Lending Installation of
making its Commitment or making, funding or maintaining Credit
Extensions or reduces any amount receivable by any Bank or any
applicable Lending Installation in connection with its Commitment or
Credit Extensions, or requires any Bank or any applicable Lending
Installation to make any payment calculated by reference to the amount
of Credit Extensions held, the Commitment made, or interest received by
it by an amount deemed material by such Bank, or
(iv) affects the amount of capital required or expected to be
maintained by any Bank or Lending Installation or any corporation
controlling any Bank and such Bank determines the amount of capital
required is increased by or based upon the existence of this Agreement
or its obligation to make Credit Extensions hereunder or of commitments
of this type,
then, within 90 days after demand by such Bank or at the immediately succeeding
Quarterly Payment Date, whichever period is shorter (but in no event less than
ten Business Days), the Borrower shall pay such Bank that portion (after giving
effect to any payment made or to be made under SECTION 2.19, if applicable) of
such increased expense incurred (including, in the case of SECTION 3.01(A)(IV),
any reduction in the rate of return on capital to an amount below that which it
could have achieved but for such regulation after taking into account such
Bank's policies as to capital adequacy) or reduction in an amount received which
such Bank determines is attributable to making, funding and maintaining its
Credit Extensions or its Commitment.
(b) In determining such increased expense, reduction in rate of return
of capital or reduction in an amount received pursuant to SECTION 3.01(A), each
Bank shall act reasonably and in good faith and will, to the extent the
increased costs or reductions in amounts received or receivable relate to such
Bank's loans in general and are not specifically attributable to the Credit
Extensions hereunder, use averaging and attribution methods which are reasonable
and which cover all loans and other credit extensions similar to the Credit
Extensions made by such Bank whether or not the loan documentation for such
other loans permits the Bank to receive increased costs of the type described in
SECTION 3.01(A), with written notice as to the additional amounts owed to such
Bank, showing the basis for the calculation thereof and containing a description
of the event giving rise to such increased expense, reduction in rate of return
of capital or
46
54
reduction in amount received hereunder, to the Borrower by such Bank to be,
absent manifest error, final and conclusive and binding upon all the parties
hereto.
SECTION 3.02. AVAILABILITY OF RATE OPTIONS; ILLEGALITY.
(a) If the Required Banks determine that (i) deposits of a
type and maturity appropriate to match fund Eurodollar Rate Advances
are not available or (ii) the Eurodollar Base Rate does not accurately
reflect the cost of making or maintaining a Eurodollar Rate Loan, then
the Administrative Agent may, and at the request of the Required Banks
shall, suspend the availability of the Eurodollar Rate Advances and
require that, at the option of the Borrower, any Eurodollar Rate
Advances outstanding either be repaid or converted to Floating Rate
Advances on the last day of the relevant Interest Period therefor.
(b) If any Bank determines that maintenance of its Eurodollar
Rate Loans at a suitable Lending Installation would violate any
Applicable Law, or any policy, guideline or directive of any
governmental authority having jurisdiction over such Bank, whether or
not having the force of law, then such Bank shall promptly notify the
Borrower and the Administrative Agent and, so long as such
circumstances shall continue, (i) such Bank shall have no obligation to
make or convert into Eurodollar Rate Loans (but shall make Floating
Rate Loans concurrently with the making of or conversion into
Eurodollar Rate Loans by the Banks which are not so affected, in each
case in an amount equal to such Bank's Percentage of all Eurodollar
Rate Loans which would be made or converted into at such time in the
absence of such circumstances) and (ii) on the last day of the current
Interest Period for each Rate Loan of such Bank (or, in any event, if
such Bank so requests, on such earlier date as may be required by such
Applicable Law, policy, guideline or directive), such Eurodollar Rate
Loan shall, unless then repaid in full, automatically convert to a
Floating Rate Loan. Each Floating Rate Loan made by a Bank which, but
for the circumstances described in the foregoing sentence, would be a
Eurodollar Rate Loan (an "AFFECTED LOAN") shall, notwithstanding any
other provision of this Agreement, remain outstanding for the same
period as the Eurodollar Rate Advance of which such Affected Loan would
be a part absent such circumstances.
SECTION 3.03. FUNDING INDEMNIFICATION. If any payment of a Eurodollar
Rate Advance occurs on a date which is not the last day of an Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar Rate
Advance is not made on the date specified by the Borrower for any reason other
than default by the Banks or other than following a Required Bank determination
47
55
pursuant to SECTION 3.02, the Borrower will indemnify each Bank for any loss
(including lost profits) or cost incurred by it resulting therefrom, including
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Rate Advance.
SECTION 3.04. CHANGE OF LENDING OFFICE, REPLACEMENT OF BANK, ETC.
(a) Each Bank agrees that, upon the occurrence of any event giving rise
to the operation of SECTION 2.19, 3.01 or 3.02 with respect to such Bank, it
will, (i) promptly notify the Borrower and the Administrative Agent and (ii) to
the extent permitted by Applicable Law or by the relevant governmental
authority, in consultation with the Administrative Agent, for a period of 30
days endeavor in good faith to avoid or minimize the increase in costs or
reduction in payments resulting from such event (including, but not limited to,
endeavoring to change its Lending Installation); PROVIDED, HOWEVER, that such
avoidance or minimization can be made in such a manner that such Bank, in its
sole determination, suffers no economic, legal or regulatory disadvantage. If
any Bank (an "AFFECTED BANK") shall make a demand for payment under any of such
SECTIONS (or, in the case of SECTION 3.02(B), be required to make or convert to
Floating Rate Loan(s)), and the Borrower shall find a Bank or an Eligible
Assignee which offers in writing to purchase the Commitment and Credit
Extensions of such Affected Bank without recourse at par on a specified date,
together with accrued and unpaid interest and commitment fees owed to such Bank
to the date of purchase, and tenders the purchase price of such Commitment and
Credit Extensions on such specified date, and if, in the reasonable opinion of
such Affected Bank, its acceptance of such offer would be permitted by
Applicable Law and all relevant governmental authorities and would not result in
its suffering any economic, legal or other regulatory disadvantage, then the
Borrower shall be excused from the payment of the increased costs claimed by
such Affected Bank under any of such SECTIONS accruing after the first interest
payment date pursuant to SECTION 2.12 for each Loan of such Affected Bank on or
following such specified date, if the Affected Bank demanding payment under
either such SECTION declines such purchase offer, PROVIDED that the
Administrative Agent shall first consent to any such Eligible Assignee becoming
a Bank under this Agreement, which consent the Administrative Agent shall not
unreasonably withhold. If such Affected Bank accepts such purchase offer, upon
consummation of such purchase offer such Affected Bank shall cease to be a party
hereto. Except as provided in the immediately preceding sentence, nothing in
this SECTION 3.04(A) shall affect or postpone the obligations of the Borrower to
make payments as provided in SECTION 2.19 or 3.01. Any reasonable expenses
incurred by such Affected Bank under this SECTION 3.04(A) shall be paid by the
Borrower upon delivery to the Borrower of a certificate as to the amount of such
expenses, which certificate shall be conclusive and binding, in the absence of
manifest error.
48
56
(b) A certificate of a Bank as to the amount due under SECTION 3.01 or
3.03 shall be final, conclusive and binding on the Borrower in the absence of
manifest error; PROVIDED, in the case of amounts due under SECTION 3.01, that
such certificate is accompanied by the written notice from the Bank specified in
SECTION 3.01(B). Determination of amounts payable under such Sections in
connection with a Eurodollar Rate Loan shall be reasonable and customary and
calculated as though each Bank funded its Eurodollar Rate Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the certificate shall be payable on demand after receipt by
the Borrower of the certificate. The obligations of the Borrower under SECTIONS
3.01 and 3.03 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
The obligation of each Bank to make a Loan on the occasion of each
Advance or of any Issuer to issue a Letter of Credit (and the right of the
Borrower to request any Swing Loan) is subject to the satisfaction of all the
following conditions:
SECTION 4.01. ALL CREDIT EXTENSIONS. In the case of each Credit Extension
(except as provided in SECTION 2.07(C) and except for Reimbursement
Obligations):
SECTION 4.01.01. REQUIRED NOTICE. The Administrative Agent shall have
received a Borrowing Notice for such Advance, a request for such Swing Loan or
an Issuance Request for such Letter of Credit, as the case may be.
SECTION 4.01.02. NO DEFAULT. Immediately prior to and after such Credit
Extension, no Default shall have occurred and be continuing.
SECTION 4.01.03. REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties of the Borrower contained in this Agreement and
the other Credit Documents (excluding, after the Collateral Release Date, the
representation and warranty set forth in SECTION 5.21 and any representation or
warranty set forth in any Collateral Document) shall be true and correct in all
material respects on and as of the date of such Credit Extension.
SECTION 4.01.04. NO LITIGATION, ETC. Except as set forth in ITEM A
("Litigation [SECTION 5.08]") of the Disclosure Schedule, no litigation,
arbitration, governmental investigation, proceeding or
49
57
inquiry shall be pending, or, to the best knowledge of the Borrower
(after due inquiry), threatened
(a) which seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result
of, the transactions contemplated by the Credit Documents, any Senior
Debt Document, any Subordinated Debt Document, any material agreement
pursuant to which equity capital is contributed to the Borrower or the
Borrower's capital stock is issued, or any agreement, instrument or
other document related to any of the foregoing, or which relates to the
validity or enforceability of any of the foregoing agreements or
instruments; or
(b) which is a development in the litigation, arbitration,
governmental investigation, proceeding or inquiry set forth in such
ITEM C ("Litigation [SECTION. 5.08]") that has or is reasonably likely
to have a Materially Adverse Effect with respect to any of the
agreements described in CLAUSE (A) above or any transactions
contemplated hereby or thereby; or
(c) which has or is reasonably likely to have a Materially
Adverse Effect with respect to any of the agreements described in
CLAUSE (A) above or any transactions contemplated hereby or thereby.
SECTION 4.01.05. FURTHER REQUESTS. The Administrative Agent shall have
received all documents any Bank through the Administrative Agent may reasonably
request relating to the existence of the Borrower or any Subsidiary, the
corporate authority for and the validity of this Agreement and each Credit
Document and any other matters relevant hereto, and all documents any Bank
through the Administrative Agent may reasonably request to update, as of the
date of such Credit Extension, any of the documents or assurances provided
pursuant to SECTION 4.02, all in form and substance reasonably satisfactory to
the Administrative Agent.
SECTION 4.01.06. SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower and any Subsidiary
shall be reasonably satisfactory in form and substance to the Administrative
Agent and its counsel; the Administrative Agent and its counsel shall have
received all information and such counterpart originals or such certified or
other copies of such materials as any Bank through the Administrative Agent may
reasonably request; and all legal matters incident to the transactions
contemplated by this Agreement shall be reasonably satisfactory to the
Administrative Agent.
Each Credit Extension hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such
50
58
Credit Extension as to the facts specified in SECTIONS 4.01.02 through 4.01.04,
except as to any such SECTION waived as provided herein.
SECTION 4.02. AMENDMENT EFFECTIVE TIME. On and from the first date that
the Administrative Agent shall have received counterparts of this Agreement duly
executed by the Borrower and each Bank listed on the signature pages hereof, and
that each of the following conditions in this SECTION 4.02 shall have been
satisfied, the terms and conditions of the Existing Agreement shall be
superseded and restated in their entirety by the terms and conditions of this
Agreement and this Agreement shall take effect. This Agreement shall not
constitute a novation, and the execution and delivery by the Borrower of this
Agreement and the Notes is in substitution for, but not in payment of, the
Borrower's obligations incurred under or evidenced by the Existing Agreement and
the "Notes" delivered thereunder and as defined therein.
The Administrative Agent shall give notice to the Borrower and to each
Bank that the Amendment Effective Time has occurred. Each agreement, opinion or
certificate described in this SECTION 4.02 shall be dated the date of the
Amendment Effective Time (or an earlier date satisfactory to the Administrative
Agent).
SECTION 4.02.01. RESOLUTIONS, ETC. The Administrative Agent shall have
received, for the Borrower and each Subsidiary executing Credit Documents at the
Amendment Effective Time, a certificate of an Authorized Officer thereof as to:
(a) resolutions of the Board of Directors of such Person then
in full force and effect authorizing the execution, delivery and
performance by such Person of, as applicable, this Agreement, the
Notes, the Collateral Documents and each other Credit Document to be
executed by it;
(b) the incumbency and signatures of the Authorized Officers
of such Person authorized to act relative to, as applicable, this
Agreement, the Notes, the Collateral Documents and each other Credit
Document to be executed by it (upon which certificate the
Administrative Agent and each Bank may conclusively rely until the
Administrative Agent or such Bank shall have received a further
certificate of an Authorized Officer of such Person cancelling or
amending such prior certificate); and
(c) such other matters as the Administrative Agent or any Bank
through the Administrative Agent may reasonably request.
SECTION 4.02.02. NO MATERIALLY ADVERSE EFFECT. There shall not have
been any Materially Adverse Effect since December 1, 1996.
51
59
SECTION 4.02.03. CLOSING FEES AND EXPENSES. The Administrative Agent shall
have received payment in full of all reasonable fees, expenses and out-of-pocket
costs then or theretofore payable hereunder (an invoice for which fees, expenses
and out-of-pocket costs shall have been previously delivered to the Borrower),
and the Borrower shall have paid all amounts then due and payable pursuant to
the Fee Letters.
SECTION 4.02.04. NOTES. The Administrative Agent shall have received the
duly executed Global Revolving Note and Swing Note, in each case complying with
the provisions of SECTION 2.08.
SECTION 4.02.05. OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions addressed to the Administrative Agent and all Banks, from each
of:
(a) Xxxxxx, Halter & Xxxxxxxx, counsel for the Borrower and its
Subsidiaries, substantially in the form of EXHIBIT K-1;
(b) Kramer, Levin, Naftalis & Xxxxxxx, special New York counsel for
the Borrower and its Subsidiaries, substantially in the form of EXHIBIT
K-2;
(c) Xxxxxxxxx & Xxxxxxxxxxx, counsel for Xxxx/Chilmark, substantially
in the form of EXHIBIT K-3; and
(d) Xxxxx, Xxxxx & Xxxxx, counsel for the Administrative Agent,
substantially in the form of EXHIBIT K-4.
SECTION 4.02.06. CONFIRMATION. The Administrative Agent shall have received
the Confirmation, duly executed by the Borrower and each Subsidiary party to any
Credit Document.
SECTION 4.02.07. REAL ESTATE. The Administrative Agent shall have received
(a) a duly-executed Mortgage Amendment with respect to each Mortgage on real
property of the Borrower or any Subsidiary (other than the real property located
in South Brunswick, New Jersey, Mason, Ohio, Carolina, Puerto Rico, Orlando,
Florida and Albany, New York) and (b) assurances from the title insurance
company providing title insurance with respect to each such Mortgage the
Administrative Agent will receive, promptly following the Amendment Effective
Time, (i) date down endorsements of the title insurance policy as to such
Mortgage, effective as of the Amendment Effective Time, in form and substance
satisfactory to the Administrative Agent or (ii) such other documentation as any
Bank through the Administrative Agent may reasonably request, in form and
substance satisfactory to such Bank, as to the priority and continued validity
of such Mortgage.
52
60
SECTION 4.02.08. OTHER CONDITIONS. Immediately prior to and after
giving effect to the Amendment Effective Time, the conditions set forth in
SECTIONS 4.01.02 through 4.01.06 shall have been satisfied as if such SECTIONS
were set forth herein (except that references to a "Credit Extension" shall be
references to the "Amendment Effective Time").
SECTION 4.02.09. ALL PROCEEDINGS AND INSTRUMENTS SATISFACTORY. All
corporate and legal proceedings and all instruments and agreements delivered in
connection with the transactions contemplated by this Agreement and each other
Credit Document shall be reasonably satisfactory in form and substance to the
Banks, and the Administrative Agent shall have received all information and
copies of all documents and papers, including records of corporate existence,
authority and proceedings and governmental approvals, if any, which any Bank
reasonably may have requested in connection therewith, and such documents and
papers, where appropriate, shall be certified by proper corporate or
governmental authorities.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 5.01. CORPORATE EXISTENCE AND POWER. The Borrower and each of
its Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of the jurisdiction of its incorporation, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business makes such qualification
necessary and where the failure to so qualify is reasonably likely to have a
Materially Adverse Effect, and has full corporate power and authority and holds
all requisite governmental licenses, permits and other approvals to own and hold
under lease its property and to conduct its business substantially as presently
conducted by it which the failure to so have or hold is reasonably likely,
individually or in the aggregate, to have a Materially Adverse Effect.
SECTION 5.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION.
The execution and delivery by the Borrower and, where applicable, each
Subsidiary of the Borrower of this Agreement, the Notes, the Collateral
Documents to which it is or is to be a party, and each other Credit Document to
which it is or is to be a party, the performance by the Borrower and, where
applicable, each Subsidiary of its obligations hereunder and thereunder, and all
Credit Extensions obtained hereunder by the Borrower, have been duly authorized
by all necessary corporate action, do not require any Approvals (other than
Approvals which
53
61
have been obtained and are in full force and effect), do not and will not
conflict with, result in any violation of, or constitute any default under, any
provision of any Organic Document or Contractual Obligation of the Borrower or
any Subsidiary (except for conflicts, violations or defaults under Contractual
Obligations which, individually or in the aggregate, are not reasonably likely
to have a Materially Adverse Effect) or any law or governmental regulation or
court decree or order applicable to it or its property and will not result in or
require the creation or imposition of any Lien on any of its properties pursuant
to the provisions of any Contractual Obligation (excluding, however, the Liens
created by the Collateral Documents).
SECTION 5.03. BINDING EFFECT; RANKING. This Agreement and each of the
Collateral Documents to which the Borrower is a party has been duly executed and
delivered by the Borrower and is, and each of the Notes upon the execution and
delivery thereof by the Borrower will be, the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms, subject to
any applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and to general principles of equity. Each
Collateral Document to which a Subsidiary is a party constitutes the legal,
valid and binding obligation of the Subsidiary party thereto, enforceable in
accordance with its terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and to general principles of equity.
SECTION 5.04. FINANCIAL STATEMENTS. (a) All balance sheets, all
statements of earnings, stockholders' equity and cash flow, and all other
financial information which have been furnished by or on behalf of the Borrower
and its Subsidiaries or by any other Person at the direction of the Borrower or
any of its Subsidiaries to any Bank or the Administrative Agent for the purposes
of or in connection with this Agreement or any transaction contemplated hereby,
including a draft of the audited consolidated balance sheet at December 1, 1996
and a draft of the related audited consolidated statements of earnings,
stockholders' equity and cash flow, for the Fiscal Year then ended, of the
Borrower and its Subsidiaries, prepared by KPMG Peat Marwick, have been prepared
in accordance with GAAP consistently applied (subject, where applicable, to
normal year-end adjustments), except where not applicable thereto or as
otherwise disclosed therein, throughout the periods involved and present fairly
the financial condition of the Borrower and its Subsidiaries, taken as a whole,
covered thereby as at the dates thereof and the results of their operations for
the periods then ended. Neither the Borrower nor any of its Subsidiaries had, as
of such date, any material contingent liability or liabilities for taxes,
long-term leases or unusual forward or long-term commitments which are not
reflected in such financial statements or in the
54
62
Disclosure Schedule and which, in accordance with GAAP, should have been
reflected in such financial statements.
(b) The Initial Financial Projections delivered to the Administrative
Agent and the Banks prior to the execution of this Agreement represent
reasonable estimates of the future performance of the Borrower and its
Subsidiaries and were prepared by the Borrower based upon historical financial
information and assumptions the Borrower deems reasonable and appropriate in
light of current circumstances.
SECTION 5.05. MATERIALLY ADVERSE EFFECT. Since December 1, 1996, no
events have occurred or contracts have been entered into which, individually or
in the aggregate, constitute or are reasonably likely to constitute a Materially
Adverse Effect.
SECTION 5.06. SOLVENCY. Before and after giving effect to the initial
Credit Extensions and the application of the proceeds thereof (including the
payment of the Effective Time Dividend), the Borrower is Solvent.
SECTION 5.07. SUBSIDIARIES; CAPITALIZATION. (a) As of the Amendment
Effective Time, the Borrower has no Subsidiaries except the corporations that
are identified in ITEM B-1 ("Existing Subsidiaries [SECTION 5.07(A)]") of the
Disclosure Schedule.
(b) The Borrower has no authorized capital stock outstanding as of the
Amendment Effective Time other than 30,155,735 shares of Class A common stock,
$0.01 par value, all of which are issued and outstanding and Beneficially Owned,
as of the Amendment Effective Time, by the Persons listed, and in the
approximate respective amounts listed, in ITEM B-2 ("Stock Ownership [SECTION
5.07(B)]") of the Disclosure Schedule.
SECTION 5.08. LITIGATION. Except as set forth in ITEM A ("Litigation
[SECTION 5.08]") of the Disclosure Schedule or disclosed by the Borrower in
accordance with SECTION 6.01.06(B), no litigation, arbitration, governmental
investigation, proceeding or inquiry is pending or, to the best knowledge of the
Borrower (after due inquiry) threatened:
(a) which seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result
of, the transactions contemplated by the Credit Documents, any material
agreement pursuant to which equity capital is contributed to the
Borrower or the Borrower's capital stock is issued, or any agreement,
instrument or other document related to any of the foregoing, or which
relates to the validity of any of the foregoing agreements or
instruments; or
55
63
(b) which is a development in the litigation, arbitration,
governmental investigation, proceeding or inquiry set forth in such
ITEM C that would have or is reasonably likely to have a Materially
Adverse Effect or with respect to any of the agreements described in
CLAUSE (A) above or any transactions contemplated hereby or thereby; or
(c) which otherwise could reasonably be expected to have a
Materially Adverse Effect or with respect to any of the agreements
described in CLAUSE (A) above or any transactions contemplated hereby
or thereby.
SECTION 5.09. INVESTMENT COMPANY. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940.
SECTION 5.10. PUBLIC UTILITY COMPANY. Neither the Borrower nor any
Subsidiary is a "public-utility company", or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935.
SECTION 5.11. ABSENCE OF DEFAULT. Neither the Borrower nor any of its
Subsidiaries is in default in the payment of (or in the performance of any
obligation applicable to) any Debt, or in violation of any Applicable Law, in
any such case which has had, or is reasonably likely to have, a Materially
Adverse Effect.
SECTION 5.12. DISCLOSURE. Except as otherwise disclosed in ITEM C
("Update of Factual Information [SECTION 5.12]") of the Disclosure Schedule, all
factual information heretofore or contemporaneously furnished by or on behalf of
the Borrower in writing to the Administrative Agent or any Bank for purposes of
or in connection with this Agreement or any other Credit Document or any
transaction contemplated hereby is, and all such other factual information
hereafter furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Bank will be, taken as a whole, true and accurate in
all material respects on the date as of which such information is or will be
dated or certified and does not or will not omit to state any material fact
necessary to make such information not misleading in light of the circumstances
at the time prevailing.
SECTION 5.13. REGULATIONS G, T, U AND X. Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock. None of the proceeds of any Loan will be used for the
purpose of, or be made available by the Borrower or any of its Subsidiaries in
56
64
any manner to any other Person to enable or assist such Person in, purchasing or
carrying "margin stock". Terms for which meanings are provided in Regulations G,
T, U and X or any regulations substituted therefor, as from time to time in
effect, are used in this SECTION 5.13 with such meanings.
SECTION 5.14. SECURITIES REGULATIONS. All offerings or sales of any
Debt or securities issued or guaranteed by the Borrower or any Subsidiary will
be made in compliance with, or pursuant to an exemption to, the registration or
qualification requirements of the Securities Act of 1933, applicable state
securities or blue sky laws and the rules and regulations promulgated
thereunder.
SECTION 5.15. TAXES. Each of the Borrower and its Subsidiaries has
filed all federal and other material tax returns and reports required by law to
have been filed by it and has paid all taxes and governmental charges thereby
shown to be owing, except any such taxes or charges which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books. No tax Liens (other
than Liens for taxes which are not yet due and payable) have been filed with
respect to the Borrower or any of its Subsidiaries and, to the best knowledge of
the Borrower, except as otherwise disclosed in ITEM A ("Litigation [SECTION
5.08]") of the Disclosure Schedule, no claims are being asserted with respect to
any such taxes or charges, which Liens and claims, individually or in the
aggregate, have had, or could reasonably be expected to have, a Materially
Adverse Effect.
SECTION 5.16. PENSION AND WELFARE PLANS. During the four consecutive
Fiscal Quarters prior to the date of this Agreement and as of the date of any
Credit Extension hereunder, no formal action has been taken to terminate any
Pension Plan (except for terminations of Pension Plans which, as of the date of
this Agreement or any Credit Extension, can be terminated without incurring any
liability under section 4062 of ERISA) and no contribution failure has occurred
with respect to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which has had, or could reasonably be expected to
have, a Materially Adverse Effect.
SECTION 5.17. LABOR CONTROVERSIES. Except as set forth in ITEM A
("Litigation" [SECTION 5.08]) of the Disclosure Schedule, there are no labor
controversies pending or, to the best knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries, which, if adversely determined,
could reasonably be expected to have a Materially Adverse Effect.
SECTION 5.18. OWNERSHIP OF PROPERTIES; LIENS. The Borrower and each of
its Subsidiaries has valid fee or leasehold interests
57
65
in all real property, and good and valid title to all of its respective
properties and assets, real and personal, of any nature whatsoever the
termination or loss of which could reasonably be expected to cause any
Materially Adverse Effect and is not in default beyond the expiration of any
applicable grace period of any material obligation under any leases creating
any of its leasehold interests in real property the termination or loss of
which could reasonably be expected to cause any Materially Adverse Effect, and
none of such property is subject to any Lien, except as permitted pursuant to
SECTION 6.02.03 and except for Liens upon leased property securing Debt of
landlords or owners thereof. The real property described in ITEM D ("Major
Properties [SECTION 5.18]") of the Disclosure Schedule constitutes all real
property of the Borrower and its Subsidiaries the termination or loss of which
could reasonably be expected to cause any Materially Adverse Effect. As of the
Amendment Effective Time, the real property described in ITEM E ("Locker
Stock/Third Party Warehouse Inventory [SECTION 5.18]") of the Disclosure
Schedule constitutes all locations of real property at which significant
inventory of the Borrower or such Subsidiaries is held subject to consignment
arrangements or in public warehouses, and the approximate amount of such
inventory held at such locations.
SECTION 5.19. PATENTS, TRADEMARKS, ETC. The Borrower and each of its
Subsidiaries owns (or is licensed to use) and possesses all such patents,
patent rights, trademarks, trademark rights, trade names, trade name rights,
service marks, service xxxx rights, and copyrights as the Borrower considers
necessary for the conduct of the businesses of the Borrower and its
Subsidiaries as now conducted without, individually or in the aggregate, any
infringement or alleged infringement, except as disclosed in ITEM A
("Litigation [SECTION 5.08]") of the Disclosure Schedule, upon rights of other
Persons which might reasonably be expected to have a Materially Adverse Effect,
and (except as disclosed on ITEM I ("Patents and Trademarks [SECTION 5.19]") of
the Disclosure Schedule) (or, in the case of any intellectual property right
acquired or arising after the Amendment Effective Time, as disclosed in writing
to the Administrative Agent) there is no individual patent or patent license or
trademark or trademark right the loss of which might reasonably be expected to
have a Materially Adverse Effect.
SECTION 5.20. SUBORDINATED DEBT, ETC. The Senior Subordinated Notes and
the Senior Subordinated Note Indenture constitute the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms, subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the rights of creditors
generally and to general principles of equity. The subordination provisions of
the Senior Subordinated Notes and the Senior Subordinated Note Indenture are
enforceable against the holders of the Senior Subordinated Notes by the holder
of any
58
66
"Senior Debt" (as defined in the Senior Subordinated Note Indenture) which has
not effectively waived the benefits thereof. All monetary Obligations, including
the Obligations to pay principal of and interest on the Loans, the Letters of
Credit, the Reimbursement Obligations, and fees and expenses in connection
therewith, constitute "Bank Debt" and "Senior Debt", as defined in the Senior
Subordinated Note Indenture, and all such Obligations are entitled to the
benefits of subordination created by the Senior Subordinated Note Indenture and
the Senior Subordinated Notes. The principal of and interest on the Notes and
all other Obligations will constitute "Senior Debt" as that or any similar term
is or may be used in any other instrument evidencing or applicable to any other
Subordinated Debt. As of the date of the execution and delivery of the Senior
Subordinated Notes, the Senior Subordinated Notes were duly registered or
qualified under all applicable United States Federal and state securities laws
or exempt therefrom. The Borrower acknowledges that each Bank is entering into
this Agreement, and is extending its Commitment in reliance upon, the
subordination provisions of the Senior Subordinated Note Indenture, the Senior
Subordinated Notes and this Section. All payments of principal of or interest on
any Subordinated Debt made by the Borrower or from the liquidation of its
property will be subject to such subordination provisions.
SECTION 5.21. THE COLLATERAL DOCUMENTS. The provisions of the
Collateral Documents executed by the Borrower or any Subsidiary in favor of the
Administrative Agent securing the Notes and all other Obligations from time to
time outstanding are effective to create, in favor of the Administrative Agent,
on behalf of the Banks, a legal, valid and enforceable Lien in all right, title
and interest of the Borrower and such Subsidiary in any and all of the
Collateral described therein, and each of such Collateral Documents constitutes
a fully perfected Lien in all right, title and interest of the Borrower or such
Subsidiary in such Collateral superior in right to any Liens, existing or
future, which the Borrower or such Subsidiary or any creditors thereof or
purchasers therefrom, or any other Person, may have against such collateral or
interests therein, except to the extent, if any, otherwise provided therein or
in this Agreement. The Collateral described in the Collateral Documents
constitutes all of the real and personal property of the Borrower and its
Subsidiaries, except property described in ITEM G, SECTION 1 ("Property Not
Pledged [SECTION 5.21]") of the DisclosurE Schedule or as may hereafter be
agreed by the Required Banks. As of the Amendment Effective Time, each parcel
of owned real property and the leasehold interest in leased real property of
the Borrower and its Subsidiaries listed in ITEM G, SECTION 2 ("Property Not
Pledged [SECTION 5.21]") of the Disclosure Schedule has, to the best of the
Borrower's knowledge and belief, a fair market value of less than $2,000,000.
59
67
SECTION 5.22. HAZARDOUS MATERIALS. Except as set forth in ITEM H
("Hazardous Materials [SECTION 5.22]") of the Disclosure Schedule:
(a) No notice, notification, demand, request for information,
citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is
pending or threatened by any governmental or other entity with respect
to any alleged failure by the Borrower or any Subsidiary to have any
permit, certificate, license, approval, registration or authorization
required in connection with the conduct of the Borrower's or such
Subsidiary's business or with respect to any generation, treatment,
storage, recycling, transportation or disposal or release as defined in
42 U.S.C. SECTION 9601(22) (a "RELEASE") of any substance regulated
under federal, state or local environmental statutes, ordinances,
rules, regulations or orders ("HAZARDOUS MATERIALS") generated by the
Borrower or such Subsidiary, except for any of the foregoing which do
not, and are not reasonably likely to, individually or in the
aggregate, have a Materially Adverse Effect.
(b) Neither the Borrower nor any Subsidiary has handled any
Hazardous Material on any property now or previously owned or leased by
the Borrower or such Subsidiary to an extent that has, or is reasonably
likely to have, a Materially Adverse Effect; and
(i) no PCB is or has been present at any property now
or previously owned or leased by the Borrower or any
Subsidiary to an extent that has, or is reasonably likely to
have, a Materially Adverse Effect;
(ii) no asbestos is or has been present at any
property now or previously owned or leased by the Borrower or
any Subsidiary to an extent that has, or is reasonably likely
to have, a Materially Adverse Effect;
(iii) there are no underground storage tanks for
Hazardous Materials, active or abandoned, at any property now
or previously owned or leased by the Borrower or any
Subsidiary to an extent that has, or is reasonably likely to
have, a Materially Adverse Effect;
(iv) no Hazardous Materials have been Released at, on
or under any property now or previously owned or leased by the
Borrower or any Subsidiary to an extent that has, or is
reasonably likely to have, a Materially Adverse Effect; and
(v) no Hazardous Materials have been Released, in
a reportable quantity, where such a quantity has been
60
68
established by statute, ordinance, rule, regulation or order,
at, on or under any property now or previously owned by the
Borrower or any Subsidiary to an extent that has, or is
reasonably likely to have, a Materially Adverse Effect.
(c) Neither the Borrower nor any Subsidiary has directly
transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed under CERCLA or on
any similar state list or which is the subject of federal, state or
local enforcement actions or other investigations which may lead to
claims against the Borrower or any Subsidiary for clean-up costs,
remedial work, damages to natural resources or for personal injury
claims, including, but not limited to, claims under CERCLA, where the
fact of any such act is, or is reasonably likely to have, a Materially
Adverse Effect.
(d) No Hazardous Material generated by the Borrower or any
Subsidiary has been recycled, treated, stored, disposed of or
transported by any entity other than those listed in ITEM H
("Hazardous Materials [SECTION 5.22]") of the Disclosure Schedule or
Released by the Borrower or such Subsidiary at any location other than
those listed in ITEM H ("Hazardous Materials [SECTION 5.22]") of the
Disclosure Schedule where the fact of any such act has, or is
reasonably likely to have, a Materially Adverse Effect.
(e) No oral or written notification of a Release of a
Hazardous Material has been filed by or on behalf of the Borrower or
any Subsidiary and no property now or previously owned or leased by the
Borrower or any Subsidiary is listed or proposed for listing on the
National Priority list promulgated pursuant to CERCLA, or on any
similar state list of sites requiring investigation or clean-up, where
any such listing has, or is reasonably likely to have, a Materially
Adverse Effect.
(f) There are no environmental Liens on any of the real
property or properties owned or leased by the Borrower or any
Subsidiary, and no government actions have been taken or are in process
which could subject any of such properties to such Liens, where such
subjection has, or is reasonably likely to have, a Materially Adverse
Effect, and neither the Borrower nor any Subsidiary would be required
to place any notice or restriction relating to the presence of
Hazardous Materials at any property owned by it in any deed to such
property where the failure to so place any such notice has, or is
reasonably likely to have, a Materially Adverse Effect.
61
69
(g) As of the Amendment Effective Time, except as set forth in
ITEM H ("Hazardous Materials [SECTION 5.22]") of the Disclosure
Schedule, there have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in
the possession of the Borrower or any Subsidiary in relation to any
property or facility now or previously owned or leased by the Borrower
or any Subsidiary and which have not been made available to the Banks.
ARTICLE VI
COVENANTS
SECTION 6.01. CERTAIN AFFIRMATIVE COVENANTS. The Borrower agrees that,
unless the Required Banks consent thereto in writing, so long as any Bank has
any Commitment hereunder or any Obligation remains outstanding or unpaid:
SECTION 6.01.01. FINANCIAL INFORMATION, ETC. The Borrower will furnish,
or will cause to be furnished, to each Bank and to the Administrative Agent
copies of the following financial statements, reports and information:
(a) within 95 days after the close of each Fiscal Year,
(i) a consolidated balance sheet at the close of such
Fiscal Year, and related consolidated statements of earnings,
stockholders' equity and cash flow for such Fiscal Year, of
the Borrower and its Subsidiaries, audited and certified
without Impermissible Qualification by an Independent Public
Accountant, and
(ii) a Compliance Certificate calculated as of the
computation date at the close of such Fiscal Year;
(b) within 60 days after the close of each of the first three
Fiscal Quarters of each Fiscal Year,
(i) consolidated balance sheets at the close of such
Fiscal Quarter, and related consolidated statements of
earnings and cash flow for such Fiscal Quarter and for the
period from the commencement of such Fiscal Year to the end of
such Fiscal Quarter, of the Borrower and its Subsidiaries,
setting forth comparative figures at the close of and for the
corresponding Fiscal Quarter and period of the prior Fiscal
Year, certified by the chief accounting or financial
Authorized Officer of the Borrower, and
62
70
(ii) a Compliance Certificate calculated as of the
computation date at the close of such Fiscal Quarter;
(c) promptly after any filing thereof by the Borrower with the
Commission, any annual, periodic or special report or registration
statement generally available to the public;
(d) promptly after completion or receipt thereof, a copy of
all notices, documents, or other instruments required to be delivered
pursuant to any Subordinated Debt Document or Senior Debt Document and
not otherwise required to be delivered hereunder;
(e) promptly after completion thereof, but in no event later
than January 31 of each year, a copy of the Borrower's annual sales and
profit forecast, including a forecasted balance sheet and statement of
cash flow (and a sales and profit forecast), on a monthly basis;
(f) promptly after the execution and delivery thereof, copies
of any material shareholder or similar agreement entered into by the
Borrower and any holder of the capital stock of the Borrower; and
(g) promptly, such additional financial and other information
with respect to the Borrower and its Subsidiaries as any Bank may from
time to time reasonably request through the Administrative Agent.
SECTION 6.01.02. MAINTENANCE OF CORPORATE EXISTENCE, ETC. Subject to
Section 6.02.05 and 6.02.11, (a) the Borrower will cause to be done at all times
all things necessary to maintain and preserve the corporate existences, rights
(charter and statutory) and franchises of the Borrower and each Subsidiary and
(b) the Borrower will continue to own and hold, directly or indirectly, free and
clear of all Liens (except such as have been created or permitted pursuant
hereto), all of the outstanding shares of capital stock (excluding directors'
qualifying shares, if any) or other ownership interests of each of its existing
Subsidiaries; PROVIDED that the Borrower shall not be required to preserve any
such existence, right or franchise if the Borrower shall determine that the
preservation thereof is not material or no longer desirable in the conduct of
the business of the Borrower and its Subsidiaries as a whole and that the loss
thereof will not result in a Materially Adverse Effect.
SECTION 6.01.03. FOREIGN QUALIFICATION. The Borrower will, and will
cause each Subsidiary to, cause to be done at all times all things necessary to
be duly qualified to do business and be in good standing as a foreign
corporation in each jurisdiction where the nature of its business makes such
qualification necessary
63
71
and where the failure to so qualify is reasonably likely to have a Materially
Adverse Effect.
SECTION 6.01.04. PAYMENT OF TAXES, ETC. The Borrower will, and will
cause each Subsidiary to, pay and discharge, as the same may become due and
payable, all federal and other material taxes, assessments, and other
governmental charges or levies against or on any of its income, profits or
property, as well as claims of any kind which, if unpaid, might become a Lien
upon any of its properties; PROVIDED that the foregoing shall not require the
Borrower or any Subsidiary to pay or discharge any such tax, assessment, charge,
levy or Lien, so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves in
accordance with GAAP with respect thereto.
SECTION 6.01.05. MAINTENANCE OF PROPERTY. The Borrower will, and will
cause each of its Subsidiaries to, at their respective expense:
(a) acquire and maintain its property which is, or is intended
to be, Collateral in a manner that will enable the Borrower or such
Subsidiary to cause such property to be subject to the Liens of the
Collateral Documents; and
(b) maintain and keep its properties which are used or useful
to its business in good repair, working order and condition (ordinary
wear and tear excepted.
SECTION 6.01.06. NOTICE OF DEFAULT, LITIGATION, ETC. The Borrower will,
upon an Authorized Officer of Borrower obtaining knowledge thereof, give notice
promptly to the Administrative Agent (which shall promptly notify each Bank) of:
(a) the occurrence of
(i) any Default, or
(ii) any event of default or unmatured event of
default under any Subordinated Debt Document
or Senior Debt Document;
(b) any litigation, arbitration, or governmental investigation
or proceeding not previously disclosed in writing by the Borrower to
the Banks which has been instituted or, to the knowledge of the
Borrower, is threatened against, the Borrower or any Subsidiary or to
which any of its properties is subject which
(i) if adversely determined, could reasonably be
expected to have a Materially Adverse Effect (unless the
64
72
Borrower shall, in good faith and upon consultation with
counsel, have determined such Materially Adverse Effect to be
unlikely), or
(ii) relates to this Agreement, any Note, any
Collateral Document, any other Credit Document, any
Subordinated Debt Document, any Senior Debt Document or any
agreement pursuant to which equity capital is contributed to
the Borrower or the Borrower's capital stock is issued;
(c) any material adverse development which shall occur in any
litigation, arbitration, or governmental investigation or proceeding
required to be disclosed by the Borrower to the Banks, or any
development which shall occur in any litigation, arbitration or
governmental investigation or proceeding, regardless of whether
previously disclosed by the Borrower to the Banks, if such development
has or would be reasonably likely to have a Materially Adverse Effect;
(d) any development in the business, operations, financial
condition or prospects of the Borrower and its Subsidiaries (taken as a
whole) which, in the reasonable judgment of the Borrower is reasonably
likely to have a Materially Adverse Effect;
(e) the taking of any formal action by the Borrower or any
other Person to terminate any Pension Plan (other than in a standard
termination described in section 4041(b) of ERISA with respect to which
the Borrower would have no liability), or the failure to make a
required contribution to any Pension Plan if such failure is sufficient
to give rise to a Lien on any assets of the Borrower or any Subsidiary
under section 302(f) of ERISA, or the taking of any action with respect
to a Pension Plan which could result in the requirement that the
Borrower or any Subsidiary furnish a bond or other security to the PBGC
or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan which could result in the incurrence by the Borrower
or any Subsidiary of any material liability, fine or penalty; and
(f) any material notices (including notices of default or of
acceleration thereunder) received from any holder or trustee of any
Subordinated Debt Document or Senior Debt Document.
SECTION 6.01.07. PERFORMANCE OF INSTRUMENTS. The Borrower will, and
will cause each Subsidiary to, perform all of its Obligations under the Notes
and each Credit Document executed by it, subject to any applicable grace
periods.
65
73
SECTION 6.01.08. COLLATERAL AUDITS; BOOKS AND RECORDS. Prior to the
Collateral Release Date, the Administrative Agent may conduct physical audits of
the inventory and accounts of the Borrower as often as the Administrative Agent
may deem necessary or desirable, each of which shall (unless a Default shall
have occurred and be continuing) be held on reasonable notice and at reasonable
times and intervals during ordinary business hours; provided that the Collateral
Agent shall conduct only one such audit in any year so long as no Default
exists. The Borrower will, and will cause each of its Subsidiaries to, (a) keep
proper books and records reflecting all of its business affairs and transactions
(including all loans and advances by the Borrower to any of its Subsidiaries) in
a manner which will permit the preparation of consolidated financial statements
in accordance with GAAP and (b) permit the Administrative Agent and the Banks,
on reasonable notice and at reasonable times and intervals during ordinary
business hours, to visit all of its offices, discuss its financial matters with
officers of the Borrower or any of its Subsidiaries and its independent public
accountants (PROVIDED that each Bank shall give the Borrower prior
notice of any meeting with such independent public accountants and permit a
representative of the Borrower to be present at such meeting), and examine and
make abstracts from any of its books or other corporate records. The Borrower
shall pay any fees of such independent public accountants incurred in connection
with the exercise by the Administrative Agent and the Banks of their rights
pursuant to this Section. The Borrower will, and will cause each of its
Subsidiaries to, continue in full force and effect all of its inventory control
procedures in effect on the date of this Agreement, except for improvements
thereto.
SECTION 6.01.09. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each Subsidiary to, comply with the requirements of all Applicable Laws,
noncompliance with which might have a Materially Adverse Effect.
SECTION 6.01.10. SECURITY. (a) The Borrower hereby agrees that prior to
the Collateral Release Date it will, and will cause each U.S. Subsidiary to,
take such actions as the Administrative Agent or the Required Banks may from
time to time reasonably request to establish and maintain first-priority,
perfected security interests in and Liens on all of their real and personal
property Collateral, except (i) to the extent otherwise expressly provided
herein or in any Collateral Document, and (ii) with respect to inventory held
subject to consignment arrangements or in public warehouses described from time
to time to the Administrative Agent, with an aggregate fair market value not to
exceed $10,000,000 at any time; PROVIDED that if the Borrower and its
Subsidiaries should own inventory held subject to consignment arrangements or in
public warehouses with an aggregate fair market value in excess of $10,000,000,
then the Borrower or such Subsidiary, respectively, shall have 30 days to obtain
such waivers
66
74
or agreements, make such filings or take such other actions as the
Administrative Agent may require to ensure that the aggregate fair market value
of such inventory as to which the Administrative Agent and the Banks do not have
a first-priority, perfected security interest does not exceed $10,000,000.
(b) The Borrower agrees to cause each Person that becomes a U.S.
Subsidiary after the Amendment Effective Time to promptly (i) execute and
deliver to the Administrative Agent a Subsidiary Guarantee, (ii) execute and
deliver to the Administrative Agent a counterpart of the Intercompany
Subordination Agreement, (iii) execute and deliver to the Borrower an
Intercompany Note payable to the order of the Borrower, which Intercompany Note
the Borrower will, unless the Collateral Release Date has occurred, endorse to
the order of the Administrative Agent and deliver to the Administrative Agent,
and (iv) unless the Collateral Release Date has occurred, grant to the
Administrative Agent, for the benefit of the Banks, such security interests and
Liens as are required under SECTION 6.01.10(A). The Borrower further agrees
that, unless the Collateral Release Date has occurred, it will, or will cause
the applicable Subsidiary owning each Person that becomes a Subsidiary after the
Amendment Effective Time to, pledge pursuant to the Pledge Agreement executed by
the Borrower or such applicable Subsidiary, as the case may be, 100% of the
shares of capital stock or other ownership interests of such Person (65% of such
shares of such Person if such Person is a corporate Subsidiary which is not
incorporated in the United States) owned by the Borrower or such applicable
Subsidiary, as the case may be.
SECTION 6.01.11. CASH MANAGEMENT SYSTEM. So long as the Collateral
Release Date has not occurred, the Borrower will not, nor will it permit any of
its U.S. Subsidiaries to, establish or maintain any lockbox account or similar
arrangement with any financial institution unless such financial institution,
the Administrative Agent and the Borrower or such U.S. Subsidiary shall have
entered into a Cash Management Letter.
SECTION 6.01.12. INSURANCE. (a) The Borrower shall maintain, and shall
cause each Subsidiary to maintain, at its sole cost and expense, insurance
(which may include self-insurance) to such extent and against such hazards and
liabilities, and including such reasonable deductibles, retention amounts or
similar risk management arrangements, as is commonly maintained by Persons
similarly situated.
(b) So long as the Collateral Release Date has not occurred, the
Borrower shall, and shall cause each Subsidiary to, cause each issuer of an
insurance policy to provide the Administrative Agent, on or prior to the date of
effectiveness of such policy, with an endorsement or an independent instrument
(i) substantially in the form of EXHIBIT P and (ii) showing loss payable to the
67
75
Administrative Agent and, if required by the Administrative Agent, naming the
Administrative Agent as an additional insured. So long as the Collateral Release
Date has not occurred, the Borrower shall (x) deliver to the Administrative
Agent a certificate for each policy of insurance covering any of the Collateral
and (y) notify the Administrative Agent promptly of any insured loss, in excess
of any applicable deductible, with respect to any real or personal property and
the estimated (or actual, if available) amount of such loss.
(c) The Borrower hereby directs all insurers under such policies of
insurance to pay, after the occurrence and during the continuance of an Event of
Default (but only so long as the Collateral Release Date has not occurred), all
proceeds payable thereunder directly to the Administrative Agent (other than in
respect to workers' compensation and liability, health, life and disability
insurance) to be held and/or disbursed by the Administrative Agent in accordance
with this Agreement and the Collateral Documents. The Borrower hereby appoints
the Administrative Agent and any Person whom the Administrative Agent may from
time to time designate (and all officers, employees or agents designated by the
Administrative Agent or such Person) as the Borrower's true and lawful attorney
and agent-in-fact with power, after the occurrence and during the continuance of
an Event of Default (but only so long as the Collateral Release Date has not
occurred), to make, settle and adjust claims under such policies of insurance
(provided that the Administrative Agent or such Person shall consult with the
Borrower prior to finally making, settling or adjusting claims under such
policies of insurance), to endorse the name of the Borrower on any check, draft,
instrument or other item of payment for the proceeds of such policies of
insurance, and to make all other determinations and decisions with respect to
such policies of insurance. The foregoing appointment and power, being coupled
with an interest, is irrevocable until all Obligations are paid and performed in
full and the Commitments are terminated (or the Collateral Release Date has
occurred). In the event that the Borrower, at any time or times hereafter prior
to the Collateral Release Date, shall fail to obtain or maintain any of the
policies of insurance required above or to pay any premium in whole or in part
relating thereto, the Administrative Agent, without waiving or releasing any
obligations or default by the Borrower hereunder, may at any time or times
thereafter (but shall not be obligated to) obtain and maintain such policies of
insurance and pay such premium and take any other action with respect thereto
which the Administrative Agent deems advisable.
SECTION 6.01.13. ENVIRONMENTAL MATTERS. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Applicable Laws relating to the
68
76
environment or Hazardous Materials, maintain all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and maintain in compliance therewith,
and handle all Hazardous Materials in compliance with all such
Applicable Laws, to the extent that any failure to so use, operate,
maintain or handle would reasonably be likely to have a Materially
Adverse Effect;
(b) immediately notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties or
compliance with such Applicable Laws, to the extent that such condition
or non-compliance would reasonably be likely to have a Materially
Adverse Effect, and promptly cure, and have dismissed with prejudice to
the satisfaction of the Administrative Agent, any actions and
proceedings relating to compliance with such Applicable Laws, to the
extent that non-compliance would reasonably be likely to have a
Materially Adverse Effect;
(c) promptly following the receipt thereof by an Authorized
Officer of the Borrower, deliver to the Administrative Agent a copy of
each material written environmental study, audit, test report, review
or other analysis conducted by or on behalf of, or which is received
by, the Borrower or any Subsidiary after the Amendment Effective Time
in relation to any property or facility now or previously owned or
leased by the Borrower or any Subsidiary; and
(d) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section.
SECTION 6.01.14 REAL ESTATE MATTERS. No later than 30 days after the
Amendment Effective Time, the Borrower will deliver to the Administrative Agent
(a) date down endorsements, in form and substance satisfactory to the
Administrative Agent, from the title insurance company providing title insurance
with respect to all Mortgages on real property of the Borrower or any Subsidiary
or (b) such other documentation as the Administrative Agent or any Bank through
the Administrative Agent may reasonably request, in form and substance
satisfactory to the Administrative Agent, as to the priority and continued
validity of such Mortgages.
SECTION 6.02. CERTAIN NEGATIVE COVENANTS. The Borrower agrees that,
unless the Required Banks consent thereto in writing, so long as any Bank has
any Commitment hereunder or any Obligation remains outstanding or unpaid:
69
77
SECTION 6.02.01. BUSINESS ACTIVITIES. The Borrower will not, and will
not permit any Subsidiary to, engage primarily in any business activity except
the historic business of the Borrower and its Subsidiaries and such activities
as may be incidental or related thereto or closely-related extensions thereof.
SECTION 6.02.02. DEBT. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume, or suffer to exist or otherwise become or
be liable in respect of any Debt other than:
(a) Debt in respect of the Credit Extensions;
(b) other Debt of the Borrower or any Subsidiary outstanding
on the date of this Agreement and identified in ITEM I ("Ongoing Debt"
[SECTION 6.02.02]) of the Disclosure Schedule;
(c) Subordinated Debt;
(d) Debt of the Borrower or any U.S. Subsidiary arising under
Capitalized Leases or which is hereafter incurred in connection with
the acquisition of fixed assets, PROVIDED that the aggregate principal
amount of all such Debt shall not at any time exceed $15,000,000;
(e) Debt incurred by the Borrower under any Rate Swap
Agreement or FX Swap Agreement in accordance with SECTION 6.02.20;
(f) Guarantees by the Borrower or any Subsidiary permitted by
SECTION 6.02.08;
(g) Debt of the Borrower or any Subsidiary owing to any other
Subsidiary subject to the Intercompany Subordination Agreement, Debt of
any U.S. Subsidiary owing to the Borrower evidenced by Intercompany
Notes, and Debt of any non-U.S. Subsidiary owing to the Borrower
evidenced by Intercompany Notes so long as such Debt is permitted to
exist under SECTION 6.02.05(J) or (K).
(h) Debt which is hereafter incurred by any non-U.S.
Subsidiary of the Borrower (other than Debt permitted pursuant to
CLAUSE (G) of this SECTION 6.02.02) in an aggregate principal amount
not to exceed $50,000,000;
(i) Debt which is hereafter incurred by the Borrower or any
Subsidiary in connection with industrial revenue, pollution control or
similar tax incentive bonds issued to construct new facilities for the
Borrower or such Subsidiary, in an aggregate principal amount not at
any time to exceed $20,000,000;
70
78
(j) other Senior Debt in an aggregate amount not to exceed
$50,000,000 at any one time outstanding, which Senior Debt, if secured,
shall be secured on terms no more favorable to the lenders of such
Senior Debt than PARI PASSU with the Obligations (such Senior Debt
being "PERMITTED SENIOR DEBT") in accordance with SECTION
6.02.03(A)(II); and
(k) Debt in respect of declared but unpaid dividends pursuant
to and in accordance with SECTION 6.02.06(C).
SECTION 6.02.03. LIENS. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume, or suffer to exist any Lien upon any of
its revenues, property or assets, whether now owned or hereafter acquired,
except:
(a) Liens in favor of the Administrative Agent under the
Collateral Documents to secure (i) the Credit Extensions and other
Obligations and (ii) Permitted Senior Debt subject to an intercreditor
agreement in form and substance satisfactory to the Required Banks;
(b) Liens on assets which were granted prior to the date of
this Agreement to secure any Debt permitted by SECTION 6.02.02 and
which are described in ITEM I ("Ongoing Debt [SECTION 6.02.02]") of the
Disclosure Schedule;
(c) Liens securing obligations under any purchase money Debt
permitted by SECTION 6.02.02(D) in the property acquired with the
proceeds thereof; PROVIDED that such Debt shall not be secured by any
other property;
(d) Liens on assets located outside of the United States of
any non-U.S. Subsidiary securing obligations of such non-U.S.
Subsidiary under any Debt permitted by CLAUSE (H) of SECTION 6.02.02;
(e) Liens for taxes, assessments or other governmental charges
or levies to the extent that payment thereof shall not at the time be
required to be made in accordance with the provisions of SECTION
6.01.04 and for which appropriate reserves with respect thereto have
been established and maintained on the consolidated books of the
Borrower or any Subsidiary in accordance with GAAP to the extent
required under GAAP; PROVIDED that any such Liens securing overdue
amounts being contested in good faith shall be stayed during the
pendency of such contest;
(f) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being contested in good faith by appropriate proceedings and
for which appropriate reserves
71
79
with respect thereto have been established and maintained on the
consolidated books of the Borrower or any Subsidiary in accordance with
GAAP to the extent required under such principles; PROVIDED that any
such Liens securing overdue amounts being contested in good faith shall
be stayed during the pendency of such contest;
(g) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance, or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, leases, and contracts (other than
Debt for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
(h) easements, rights-of-way, zoning and similar covenants and
restrictions and other similar encumbrances or title defects which, in
the aggregate, are not substantial in amount, and which do not in any
case materially detract from the value of the property subject thereto
or interfere with the ordinary conduct of the business of the Borrower
or its Subsidiaries;
(i) rights of leasees or subleasees in assets leased by the
Borrower or any Subsidiary which do not interfere with the ordinary
conduct of the business of the Borrower or such Subsidiary, as the case
may be, and which are made on customary and usual terms applicable to
similar assets;
(j) judgment Liens securing amounts not in excess of
$5,000,000 (to the extent not covered by insurance provided by a
reputable and creditworthy insurance carrier that has acknowledged
coverage) in existence or bonded pending appeal less than 30 days after
the entry thereof or with respect to which execution has been stayed;
(k) Liens arising by reason of the entering into of
Capitalized Leases permitted under SECTION 6.02.02(D), but only if such
Liens apply to the property financed under such Capitalized Leases and
not to any other property;
(l) Liens securing the payment of the industrial revenue bonds
listed under ITEM I ("Ongoing Debt [SECTION 6.02.02]") of the
Disclosure Schedule or any refinancing thereof, PROVIDED that the
assets of the Borrower serving as security therefor are substantially
identical to those assets of the Borrower securing such payment as of
March 1, 1989;
(m) Liens securing the payment of industrial revenue,
pollution control or similar tax incentive bonds to the extent the Debt
related thereto is permitted by CLAUSE (I) of SECTION
72
80
6.02.02, but only if such Liens apply to the property financed
thereby and not to any other property;
(n) bankers' liens arising in the ordinary course of business
by operation of law; and
(o) any Lien securing an extension, renewal or refinancing of
Debt secured by a Lien described in CLAUSE (B) or (C) above so long as
the aggregate principal amount of the Debt secured thereby is not
increased and the applicable Lien does not extend to any additional
property.
SECTION 6.02.04. FINANCIAL CONDITION. The Borrower will not permit:
(a) The Senior Leverage Ratio on the last day of any Fiscal Quarter
occurring during any period set forth below to be greater than the ratio set
forth opposite such period below:
Maximum Senior
Period Leverage Ratio
------ --------------
Fiscal Years 1997 and 1998 3.25 to 1.0
Fiscal Year 1999 3.00 to 1.0
Fiscal Year 2000 2.75 to 1.0
Thereafter 2.50 to 1.0.
(b) The Total Leverage Ratio on the last day of any Fiscal Quarter
occurring during any period set forth below to be greater than the ratio set
forth opposite such period below:
Maximum Total
Period Leverage Ratio
------ --------------
Fiscal Year 1997 5.00 to 1.0
Fiscal Year 1998 4.75 to 1.0
Fiscal Year 1999 4.50 to 1.0
Fiscal Year 2000 4.25 to 1.0
Thereafter 4.00 to 1.0.
(c) The Interest Coverage Ratio on the last day of any Fiscal Quarter
occurring during any period set forth below to be less than the ratio set forth
opposite such period below:
Minimum Interest
Period Coverage Ratio
------ --------------
Fiscal Year 1997 1.75 to 1.0
Fiscal Year 1998 2.00 to 1.0
Fiscal Year 1999 2.25 to 1.0
Thereafter 2.50 to 1.0.
73
81
SECTION 6.02.05. INVESTMENTS. The Borrower will not, and will not
permit any Subsidiary to, make, incur, assume, or suffer to exist any Investment
in any other Person, except:
(a) Investments existing on the date of this Agreement by the
Borrower or any Subsidiary in any Person identified in ITEM B-1
("Existing Subsidiaries [section 5.07]") or ITEM J ("Ongoing
Investments [section 6.02.05]") of the DisclosurE Schedule;
(b) Temporary Cash Investments by the Borrower or any
Subsidiary; PROVIDED that Temporary Cash Investments of non-U.S.
Subsidiaries pursuant to CLAUSE (VI) of the definition of "Temporary
Cash Investment" shall not exceed $50,000,000 at any one time
outstanding;
(c) Investments by the Borrower or any Subsidiary in any
Person which (i) (A) result in the creation of an account arising in
the ordinary course of the Borrower's or any Subsidiary's business or
(B) result from the restructure, reorganization, or similar composition
of trade account obligations which had arisen in the ordinary course of
the Borrower's or such Subsidiary's business and which are owing to the
Borrower or such Subsidiary from financially distressed debtors
("RESTRUCTURE INVESTMENTS"), and (ii) in each case are, at any time
prior to the Collateral Release Date, subject to the Lien of the
Administrative Agent for the benefit of the Banks under a Security
Agreement;
(d) Guarantees by the Borrower or any Subsidiary permitted by
CLAUSE (A), (B), (D) and (E) of SECTION 6.02.08;
(e) Investments by the Borrower or any U.S. Subsidiary or
Canadian Subsidiary, or the acquisition of all or substantially all of
the assets of any Person or any business unit of any Person by the
Borrower or any U.S. Subsidiary or Canadian Subsidiary; PROVIDED that
(i) the aggregate amount of the consideration for all such Investments
and acquisitions shall not exceed $30,000,000 in any Fiscal Year and
$50,000,000 during the term of this Agreement; (ii) in the case of any
such Investment or acquisition involving consideration of $15,000,000
or more, the Borrower shall have delivered to the Administrative Agent
and the Banks a certificate to the effect that, and containing
projections in reasonable detail which demonstrate that, the Borrower
will be in compliance with all financial covenants set forth in this
Agreement during the 12-month period following such Investment or
acquisition; and (iii) after giving effect to such Investment or
acquisition, the Unused Total Commitment Amount will be $20,000,000 or
more;
74
82
(f) any promissory note received by the Borrower or any
Subsidiary in the sale or other disposition of any asset (including the
capital stock of any of its Affiliates) in accordance with SECTION
6.02.11;
(g) obligations under the Rate Swap Agreements and FX Swap
Agreements;
(h) the Investment by the Borrower or any Subsidiary, or the
acquisition of all or substantially all of the assets of any Person or
any business unit of any Person by the Borrower or any Subsidiary, so
long as the aggregate consideration for such Investment or acquisition
(other than assumed Debt) has been received by the Borrower as a
capital contribution (by the issuance of stock or otherwise) during the
180-day period preceding the date of such Investment or acquisition;
(i) so long as there does not then exist a public trading
market in the Borrower's capital stock, any promissory note received by
the Borrower from an officer or executive, managerial or professional
employee of, or a consultant to, the Borrower or any Subsidiary in
order to satisfy the Borrower's obligation to finance the purchase of
stock of the Borrower, or warrants or options in respect thereof,
pursuant to a Non-Cash Compensation Plan (PROVIDED that if, after
giving effect to any such loan, the aggregate amount of all such loans
made by the Borrower in any Fiscal Year would exceed $2,000,000, the
Borrower may only make such loan if the Borrower has previously
delivered to the Administrative Agent and the Banks a certificate to
the effect that, and containing projections in reasonable detail which
demonstrate that, the Borrower will be in compliance with all financial
covenants set forth in this Agreement during the 12-month period
following such loan);
(j) Investments by the Borrower in any U.S. Subsidiary or
Canadian Subsidiary; and
(k) other Investments, PROVIDED that the aggregate amount of
all Investments permitted solely by this CLAUSE (K) plus (without
duplication) all Overseas Expenditures shall not exceed $20,000,000 in
any Fiscal Year or $50,000,000 during the term of this Agreement;
PROVIDED that no Investment otherwise permitted by CLAUSE (D), (E), (F), (H),
(I) or (K) above shall be permitted to be made if, immediately before or after
giving effect thereto, any Default shall have occurred and be continuing; and
PROVIDED, FURTHER, that no Investment otherwise permitted by CLAUSE (E), (H) or
(K) above shall be permitted to be made if (x) the representations and
warranties of the Borrower hereunder would be incorrect or
75
83
misleading in any material respect if made both immediately before and after
giving effect to such Investment or (y) in the case of the acquisition of any
Person, the purchase or acquisition of such Person by the Borrower or any
Subsidiary shall be challenged by the Board of Directors or other governing body
of such Person.
SECTION 6.02.06. RESTRICTED PAYMENTS, ETC. On or after the Amendment
Effective Time:
(a) the Borrower will not declare, pay, or make any dividend
or distribution (in cash, property, or obligations) on any shares of
any class of capital stock (now or hereafter outstanding) of the
Borrower or on any warrants, options, or other rights with respect to
any shares of any class of capital stock (now or hereafter outstanding)
of the Borrower (other than dividends or distributions payable in its
stock, or warrants to purchase its stock, or options to purchase its
stock granted to management or directors of the Borrower or any
Subsidiary, or splitups or reclassifications of its stock into
additional or other shares of its stock) or apply, or permit any
Subsidiary to apply, any of its funds, property, or assets to the
purchase, redemption, sinking fund, or other retirement of any shares
of any class of capital stock (now or hereafter outstanding) of the
Borrower or of any warrants, options or other rights to acquire shares
of any class of capital stock of the Borrower;
(b) the Borrower will not, and will not permit any Subsidiary
to, prepay or repay any principal of, or make any payment of interest
on, or redeem, purchase or defease, the Senior Subordinated Notes or
any other Subordinated Debt;
(c) the Borrower will not, and will not permit any Subsidiary
to, prepay any principal of any Debt (other than (i) prepayments of the
Credit Extensions and (ii) prepayments of other Debt (other than
Subordinated Debt) existing as of the Amendment Effective Time in a
principal amount under this CLAUSE (II) not to exceed $3,000,000);
(d) the Borrower will not, and will not permit any Subsidiary
to, make any deposit for any of the foregoing purposes;
PROVIDED that, if no Default (or, in the case of CLAUSES (A) and (B) below, no
Event of Default and no Default described in CLAUSES (H) or (I) of SECTION 7.01)
shall then exist or arise therefrom:
(A) the Borrower may, subject to the subordination provisions
of the Senior Subordinated Note Indenture, pay interest when due on the
Senior Subordinated Notes and make consent payments to some or all of
the holders of the Senior
76
84
Subordinated Notes at the Amendment Effective Time in an
aggregate amount not exceeding $4,000,000;
(B) the Borrower may, subject to the subordination provisions
applicable to any of its other Subordinated Debt, pay interest when due
under the relevant Subordinated Debt Document entered into in
accordance with SECTION 6.02.15;
(C) the Borrower may declare and pay dividends on its capital
stock, or purchase or redeem (or permit any Subsidiary to purchase) any
Senior Subordinated Note, so long as (i) the Borrower shall have
delivered to the Administrative Agent and the Banks a certificate to
the effect that, and containing projections in reasonable detail which
demonstrate that, the Borrower will be in compliance with all financial
covenants set forth in this Agreement during the 12-month period
following such transaction; (ii) after giving effect to such
transaction, the Unused Total Commitment Amount will be $20,000,000 or
more; and (iii) the aggregate amount of all dividends after March 1,
1993 (excluding the Effective Time Dividend) will not, at the time any
such dividend is paid, exceed 50% of Consolidated Net Income after
March 1, 1993;
(D) the Borrower may purchase capital stock of the Borrower,
and options or warrants for such capital stock, owned by management of
the Borrower or its Subsidiaries whose employment with the Borrower or
such Subsidiary has terminated (including by reason of death,
disability or retirement), in an aggregate amount not to exceed
$2,000,000 in each Fiscal Year (PROVIDED that any unused amounts in any
Fiscal Year, up to a maximum amount of $2,000,000, may be carried over
and used in succeeding Fiscal Years);
(E) so long as there does not then exist a public trading
market in the Borrower's capital stock, the Borrower may acquire
capital stock of the Borrower owned by an officer or executive,
managerial or professional employee of, or consultant to, the Borrower
or any Subsidiary in order to satisfy the Borrower's obligations under
a Non-Cash Compensation Plan; PROVIDED that the Borrower may only
purchase such capital stock if the Borrower has previously delivered to
the Administrative Agent and the Banks a certificate to the effect
that, and containing projections in reasonable detail which demonstrate
that, the Borrower will be in compliance with all financial covenants
set forth in this Agreement during the 12-month period following such
purchase; PROVIDED, FURTHER, that no such certificate shall be required
in connection with acquisitions of capital stock under Non- Cash
Compensation Plans in an aggregate amount in any Fiscal Year of
$1,000,000 or less;
77
85
(F) the Borrower may purchase from the applicable executive
officer(s) of the Borrower or any Subsidiary capital stock of the
Borrower for a total consideration not in excess of $1,000,000;
(G) the Borrower may repay or prepay Debt incurred after the
Amendment Effective Time pursuant to SECTION 6.02.02(D), (G), (H), (I)
or (J); and
(H) the Borrower may declare and pay the Effective Time
Dividend so long as the required percentage of the holders of the
Senior Subordinated Notes have consented thereto.
SECTION 6.02.07. OVERSEAS EXPENDITURES. The Borrower will not permit
the aggregate amount of all Overseas Expenditures plus (without duplication) all
Investments permitted solely by CLAUSE (K) of SECTION 6.02.05 to exceed
$20,000,000 in any Fiscal Year or $50,000,000 during the term of this Agreement.
SECTION 6.02.08. GUARANTEES. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume, suffer to exist or otherwise be or
become liable with respect to any Guarantees, except:
(a) the Subsidiary Guarantees;
(b) Guarantees of Debt of the Borrower or any U.S. Subsidiary
or Canadian Subsidiary permitted under SECTION 6.02.02 and leases of
the Borrower or any U.S. Subsidiary or Canadian Subsidiary permitted
under SECTION 6.02.09 made (i) (A) by the Borrower with respect to
obligations of a Subsidiary or (B) by Subsidiaries in the ordinary
course of the Subsidiaries' business and (ii) on customary and usual
terms applicable to similar transactions for companies similarly
situated;
(c) Guarantees of Debt of any Overseas Subsidiary or of
any other non-U.S. entity to the extent permitted by SECTION
6.02.05(K);
(d) Guarantees of obligations incurred by any Subsidiary under
any worker's compensation self-insurance program of such Subsidiary
administered in accordance with any Applicable Law relating to worker's
compensation; and
(e) Guarantees of obligations of any Subsidiary, which
obligations and Guarantees shall be entered into in the ordinary course
of business, consistent with the business requirements of such
Subsidiary and the Borrower, respectively, in an aggregate outstanding
amount not to exceed $2,000,000.
78
86
SECTION 6.02.09. LEASE OBLIGATIONS. The Borrower will not, and will not
permit any Subsidiary to, enter into at any time any arrangement (other than a
Capitalized Lease) which involves the leasing by the Borrower or such Subsidiary
from any lessor of any real or personal property (or any interest therein) if
such arrangement, together with all other such arrangements then in effect, will
require the payment in any Fiscal Year of an aggregate amount of rentals by the
Borrower and all Subsidiaries in excess of $20,000,000 (excluding rentals due
with respect to any sale and leaseback transaction permitted pursuant to CLAUSE
(G) of SECTION 6.02.11); PROVIDED that any calculation made for the purposes of
this Section shall exclude any amounts required to be expended for maintenance
and repairs, insurance, taxes, assessments and other similar charges.
SECTION 6.02.10. TAKE OR PAY CONTRACTS. The Borrower will not, and will
not permit any Subsidiary to, enter into or be a party to any arrangement for
the purchase of materials, supplies, other property, or services if such
arrangement by its express terms requires that payment be made by the Borrower
or such Subsidiary regardless of whether or not such materials, supplies, other
property, or services are delivered or furnished to the Borrower or such
Subsidiary.
SECTION 6.02.11. CONSOLIDATION, MERGER, SALE OF ASSETS, ETC. The
Borrower will not, and will not permit any Subsidiary to, windup, liquidate or
dissolve itself (or suffer any thereof), consolidate or amalgamate with or merge
into or with any other corporation or any other Person, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any business
unit thereof) or convey, sell, transfer, lease or otherwise dispose of all or
any part of its assets (including any stock or receivables) or issue any capital
stock, in one transaction or a series of transactions, to any Person or Persons
except:
(a) the sale of inventory in the ordinary course of business;
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the purchase or acquisition by
the Borrower of all or substantially all of the assets of any Person
(or of any business unit thereof) if permitted by SECTION 6.02.05(E),
(H) or (K);
(c) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the sale of assets by the
Borrower or any of its Subsidiaries (it being understood that all
proceeds of such sales constitute Net Disposition Proceeds for purposes
of SECTION 2.02(D));
79
87
(d) leases or subleases of real property which do not detract
from the value of the property subject thereto or interfere with the
ordinary conduct of the business of the Borrower or any Subsidiary, as
the case may be, and which are made on customary and usual terms
applicable to similar properties;
(e) sales by the Borrower or any Subsidiary of Restructure
Investments or sales by the Borrower or any Subsidiary of any account
arising in the ordinary course of business owing by a Person which
management of the Borrower has reasonably determined is in financial
distress;
(f) sales by the Borrower or any Subsidiary of obsolete
equipment on customary and usual terms applicable to similar equipment
(including equipment which has been wholly or partially destroyed and
is being sold to the insurance company which insured such equipment);
(g) sales by the Borrower or any Subsidiary as part of sale
and leaseback transactions, executed on usual and customary terms, of
any facility or equipment so long as the related rent or lease
obligations, net of imputed interest, do not exceed $5,000,000 at any
time (it being understood that all proceeds of such sales constitute
Net Disposition Proceeds for purposes of SECTION 2.02(D));
(h) issuance by the Borrower of capital stock for cash
consideration;
(i) the merger or consolidation of any U.S. Subsidiary into
the Borrower or with or into another U.S. Subsidiary, or the sale by
any U.S. Subsidiary of all or any part of its assets to another U.S.
Subsidiary, subject to full and concurrent compliance by the relevant
entities with their obligations pursuant to SECTION 6.01.10, in each
case in a manner reasonably satisfactory to the Administrative Agent;
(j) the merger, consolidation or amalgamation of any
wholly-owned Canadian Subsidiary into another wholly-owned Canadian
Subsidiary, or the sale by any wholly-owned Canadian Subsidiary of all
or any part of its assets to another wholly-owned Canadian Subsidiary;
(k) the voluntary liquidation, not under any bankruptcy or
insolvency law, of any Subsidiary so long as such Subsidiary does not
have any material assets;
(l) any license agreement executed by the Borrower or any
Subsidiary as licensor entered into in the ordinary course
80
88
of business of the Borrower or such Subsidiary consistent with business
requirements of the Borrower or such Subsidiary.
SECTION 6.02.12. MODIFICATION, ETC. OF CERTAIN AGREEMENTS. The Borrower
shall not consent to or enter into any amendment, supplement or other
modification of
(a) the Senior Subordinated Notes, the Senior Subordinated
Indenture or any other Subordinated Debt Document; or
(b) any material term, provision or agreement contained in the
certificate of incorporation of the Borrower.
SECTION 6.02.13. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any Subsidiary to, enter into, or cause, suffer, or permit
to exist:
(a) any arrangement or contract with any of its Affiliates of
a nature customarily entered into by Persons which are Affiliates of
each other (including management or similar contracts or arrangements
relating to the allocation of revenues, taxes, and expenses or
otherwise) requiring any payments to be made by the Borrower or any
Subsidiary to any Affiliate unless such arrangement is fair and
equitable to the Borrower or such Subsidiary; or
(b) any other transaction, arrangement, or contract with any
of its Affiliates which would not be entered into by a prudent Person
in the position of the Borrower or such Subsidiary with, or which is on
terms which are less favorable than are obtainable from, any Person
which is not one of its Affiliates.
Without limiting the foregoing, the Borrower will not, and will not
permit any Subsidiary to, pay or become obligated to pay any management,
consulting or similar fee to Xxxx/Chilmark or any of its Affiliates (other than
reasonable and customary (x) fees for directors and professional services and
(y) out-of-pocket expenses for services actually rendered).
SECTION 6.02.14. NEGATIVE PLEDGES; SUBSIDIARY PAYMENTS. The Borrower
will not, and will not permit any Subsidiary to, enter into any agreement
(excluding this Agreement, any other Credit Document, the Senior Subordinated
Note Indenture and any other Subordinated Debt Document or Senior Debt Document
governing any Permitted Senior Debt) (a) prohibiting the creation or assumption
of any Lien upon its properties, revenues or assets, whether now owned or
hereafter acquired, or (b) which would restrict the ability of any Subsidiary to
pay or make dividends or distributions in cash or kind, to make loans, advances
or other payments of
81
89
whatsoever nature, or to make transfers or distributions of all or any part of
its assets, in each case to the Borrower or to any corporation as to which such
Subsidiary is a Subsidiary, except, with respect only to CLAUSE (A), (i)
non-assignment clauses in existing leases and leases entered into after the date
of this Agreement (PROVIDED, with respect to any lease entered into after the
date of this Agreement, the Borrower or such Subsidiary, as the case may be,
shall use its best efforts to avoid the inclusion of such non-assignment clauses
in such lease), (ii) security agreements, pledge agreements and similar
instruments existing on the date of this Agreement and (iii) loan, security and
similar agreements entered into by any non-U.S. Subsidiary with respect to Debt
permitted pursuant to SECTION 6.02.02(H).
SECTION 6.02.15. SUBORDINATED DEBT INSTRUMENTS. The Borrower will not,
and will not permit any Subsidiary to, enter into any Subordinated Debt
Document, except the Senior Subordinated Notes and the Senior Subordinated Note
Indenture, unless such Subordinated Debt Document is satisfactory in form and
substance to the Required Banks.
SECTION 6.02.16. INCONSISTENT AGREEMENTS. The Borrower will not, and
will not permit any Subsidiary to, enter into any agreement containing any
provision which would be violated or breached by any Credit Extension or by the
performance by the Borrower or such Subsidiary, as the case may be, of its
obligations hereunder or under any Credit Document.
SECTION 6.02.17. FISCAL YEAR. The Borrower will not change its Fiscal
Year.
SECTION 6.02.18. USE OF PROCEEDS. The Borrower will not use the
proceeds of any Credit Extension except for general corporate purposes,
including to pay the Effective Time Dividend, subject to the terms of this
Agreement and Applicable Law.
SECTION 6.02.19. TAX SHARING AGREEMENTS. The Borrower will not enter
into any tax sharing or similar agreement or arrangement other than as may be
approved in writing by the Required Banks.
SECTION 6.02.20. SWAP AGREEMENTS. Neither the Borrower nor any
Subsidiary shall enter into or become liable (directly or indirectly, absolutely
or contingently) in any way under or with respect to any Rate Swap Agreement or
FX Swap Agreement except (a) any Rate Swap Agreement entered into with a Swap
Party intended to protect the Borrower or such Subsidiary against interest rate
fluctuations directly related to Debt of the Borrower or such Subsidiary
(including Debt hereunder) and (b) any FX Swap Agreement entered into with a
Swap Party intended to protect the Borrower or such Subsidiary against foreign
currency fluctuations arising in
82
90
the ordinary course of business consistent with its business requirements.
ARTICLE VII
DEFAULTS
SECTION 7.01. EVENTS OF DEFAULT. If one or more of the following events
("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Note or any Reimbursement Obligation or shall fail to pay within 5
days of the same becoming due any interest on any Note or any
Reimbursement Obligation or any fee or other amount payable hereunder;
(b) the Borrower or any Subsidiary shall fail to observe or
perform any covenant, agreement or other obligation contained in
ARTICLE VI other than SECTION 6.01.01, 6.01.03, 6.01.04, 6.01.05,
6.01.08 (with respect only to maintenance of books and records),
6.01.09, 6.02.01, 6.02.02, 6.02.03, 6.02.05, 6.02.08, 6.02.09, 6.02.10,
6.02.13, 6.02.14 or 6.02.17;
(c) the Borrower or any Subsidiary shall fail to observe or
perform any covenant, agreement or other obligation contained in
SECTION 6.02.02, 6.02.03, 6.02.05, or 6.02.08 and such failure shall
continue for more than 10 days;
(d) the Borrower or any Subsidiary shall fail to observe or
perform any covenant, agreement or other obligation contained in this
Agreement or any other Credit Document (other than those covered by
CLAUSE (A) or (B) above) and such failure shall continue for more than
30 days after an Authorized Officer of the Borrower has knowledge
thereof or written notice thereof has been given to the Borrower by the
Administrative Agent;
(e) any representation, warranty, certification or statement
made by the Borrower or, where applicable, any Subsidiary in this
Agreement or any Credit Document or made by any Person party to any
Collateral Document, or any certificate, financial statement or other
document delivered pursuant to any of such agreements, shall prove to
have been incorrect or misleading in any material respect when made or
deemed to be repeated;
(f) the Borrower or any Subsidiary shall fail to make any
payment in respect of any Debt (other than hereunder) when
83
91
due, subject to any applicable grace period; PROVIDED that such payment
with respect to any such Debt is in an aggregate amount greater than
$5,000,000;
(g) any event or condition shall occur which results in the
acceleration of the maturity of any other Debt (other than hereunder)
in an aggregate principal amount greater than $5,000,000 of the
Borrower or any Subsidiary, or which enables (or, with the giving of
notice or lapse of time or both, would enable) the holder of such Debt
or any Person acting on such holder's behalf to accelerate the maturity
thereof;
(h) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property (other
than pursuant to a voluntary liquidation permitted by SECTION
6.02.11(K), or shall consent to any such relief or to the appointment
of or taking of possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to
authorize any of the foregoing;
(i) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Borrower or
any Subsidiary under the federal bankruptcy laws as now or hereafter in
effect;
(j) a judgment or judgments or order for the payment of money
in an aggregate amount in excess of $5,000,000 (to the extent not
covered by insurance provided by a reputable and creditworthy insurance
carrier that has acknowledged coverage) shall be rendered against the
Borrower or any Subsidiary and such judgment or order shall not have
been vacated, discharged, stayed or bonded pending appeal for a period
of 30 days;
84
92
(k) any Subsidiary Guarantee shall, for any reason, fail to be
in full force and effect (except as contemplated by the terms thereof);
or any Subsidiary shall repudiate its obligations or liability under
any Subsidiary Guarantee;
(l) at any time prior to the Collateral Release Date, the
Administrative Agent shall fail to have a first-priority perfected
security interest in any Collateral under the Collateral Documents,
except (i) to the extent expressly provided herein or by the Collateral
Documents and (ii) for Collateral having a fair market value not to
exceed $1,000,000; PROVIDED that the Borrower and each Subsidiary shall
comply in all respects with SECTION 6.01.10 with respect to such
Collateral;
(m) any Change in Control shall occur; or
(n) any Person shall take formal action to terminate any
Pension Plan, if as a result of such termination the Borrower or any
Subsidiary could incur a liability to such Pension Plan or to the PBGC
in excess of $5,000,000, or a contribution failure occurs with respect
to any Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA;
then, and in every such event, the Administrative Agent may, and if requested by
the Required Banks shall, by notice to the Borrower (i) terminate each Bank's
Commitment (to the extent of any unfunded obligations thereunder), and it shall
thereupon terminate, and/or (ii) declare the Notes, the Reimbursement
Obligations, accrued interest thereon and all accrued commitment fees and other
amounts payable hereunder and under the Credit Documents to be, and such Notes,
Reimbursement Obligations and other amounts shall thereupon become, immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower, and/or (iii) require the
reimbursement referred to in SECTION 2.20.08; PROVIDED that in the case of any
of the Events of Default specified in CLAUSE (H) or (I) above, without any
notice to the Borrower or any other act by the Administrative Agent or the
Banks, each Bank's Commitment (to the extent of any unfunded obligations
thereunder) shall thereupon terminate and the Notes, Reimbursement Obligations,
accrued interest thereon and all accrued commitment fees and other amounts
payable hereunder and under the Credit Documents shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
SECTION 7.02. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under SECTION 7.01(C) promptly upon being requested to do
so by any Bank and shall thereupon notify all the Banks thereof.
85
93
ARTICLE VIII
AMENDMENTS AND REMEDIES
SECTION 8.01. AMENDMENTS. Subject to the provisions of this ARTICLE
VIII, the Required Banks (or the Administrative Agent with the consent in
writing of the Required Banks) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Credit Documents or changing in any manner the rights of the Banks or the
Borrower hereunder or waiving any Event of Default hereunder; PROVIDED that no
such supplemental agreement shall, without the consent of all of the Banks:
(a) reduce the percentage specified in the definition of
Required Banks;
(b) permit the Borrower to assign its rights under this
Agreement or under any other Credit Document;
(c) amend this SECTION 8.01;
(d) release all or substantially all of the Collateral or
change the definition of Collateral Release Date;
(e) extend the maturity of any Note, or reduce the principal
amount thereof or the rate of interest thereon, or extend the time for
payment of any interest thereon, or reduce any commitment fee payable
hereunder;
(f) reduce or postpone any scheduled reduction of the Total
Commitment Amount set forth in SECTION 2.02(B); or
(g) increase the amount of the Commitment of any Bank
hereunder.
No amendment of any provision of this Agreement or any Credit Document relating
to the Administrative Agent (in such capacity) shall be effective without the
written consent of the Administrative Agent; and no amendment of any provision
of this Agreement or any Credit Document relating to any Issuer (in such
capacity) shall be effective without the written consent of such Issuer.
SECTION 8.02. PRESERVATION OF RIGHTS. No delay or omission of the Banks
or the Administrative Agent to exercise any right under the Credit Documents
shall impair such right or be construed to be a waiver of any Event of Default
or any acquiescence therein, and the making or issuance of a Credit Extension
notwithstanding the existence of an Event of Default or the inability of the
86
94
Borrower to satisfy the conditions precedent to such Credit Extension shall not
constitute any waiver or acquiescence therein. Any single or partial exercise of
any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Credit Documents whatsoever shall be
valid unless in writing signed by the Banks required pursuant to SECTION 8.01,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Credit Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Banks until the
Obligations have been paid in full.
SECTION 8.03. COLLATERAL MATTERS.
(a) The Administrative Agent is authorized on behalf of all Banks,
without the necessity of any notice to or further consent from the Banks, from
time to time to take any action with respect to any Collateral or the Collateral
Documents which may be necessary to perfect and maintain perfected the security
interest in and Liens upon the Collateral granted pursuant to the Collateral
Documents.
(b) The Banks irrevocably authorize the Administrative Agent, at its
option and in its discretion (and without regard to any limitation in any
Collateral Document), to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Commitments
and payment in full of all Advances and all other Obligations payable under this
Agreement and under any other Credit Document; (ii) constituting property sold
or to be sold or disposed of as part of or in connection with any disposition
permitted hereunder; (iii) constituting property in which the Borrower or any
Subsidiary of the Borrower owned no interest at the time the Lien was granted or
at any time thereafter; (iv) constituting property leased to the Borrower or any
Subsidiary of the Borrower under a lease which has expired or been terminated in
a transaction permitted under this Agreement or is about to expire and which has
not been, and is not intended by the Borrower or such Subsidiary to be, renewed
or extended; (v) consisting of an instrument evidencing Debt if the Debt
evidenced thereby has been paid in full; or (vi) if approved, authorized or
ratified in writing by the Required Banks, subject to SECTION 8.01(D). Upon
request by the Administrative Agent at any time, the Banks will confirm in
writing the Administrative Agent's authority to release particular types or
items of Collateral pursuant to this subsection 8.03(B). The Administrative
Agent will notify the Banks of any such release of Collateral in a single
transaction or series of related transactions having a fair market value of
$10,000,000 or more.
87
95
(c) Promptly after the Collateral Release Date, the Administrative
Agent shall (and the Banks hereby instruct the Administrative Agent to), upon
the request and at the expense of the Borrower, release all liens and security
interests securing the obligations of the Borrower and its Subsidiaries under
the Collateral Documents.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Borrower contained in this Agreement or any other Credit
Document and of any of its Subsidiaries contained in any Credit Document shall
survive delivery of the Notes and the making or issuance of the Credit
Extensions herein contemplated.
SECTION 9.02. GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Bank shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition provided by
any Applicable Law.
SECTION 9.03. TAXES. Subject to SECTION 12.03, any taxes (other than
Excluded Taxes) payable or ruled payable by any Federal or State authority in
respect of the Credit Documents (other than taxes specifically covered to the
contrary by other provisions of this Agreement) shall be paid by the Borrower,
together with interest and penalties, if any.
SECTION 9.04. HEADINGS. Section headings in the Credit Documents are
for convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Credit Documents.
SECTION 9.05. ENTIRE AGREEMENT. The Credit Documents embody the entire
agreement and understanding among the Borrower, the Administrative Agent and the
Banks and supersede all prior agreements and understandings among the Borrower,
the Administrative Agent and the Banks relating to the subject matter thereof.
SECTION 9.06. SEVERAL OBLIGATIONS. The respective obligations of the
Banks hereunder are several and not joint and no Bank shall be the partner or
agent of any other (except to the extent to which any Administrative Agent is
authorized to act as such). The failure of any Bank to perform any of its
obligations hereunder shall not relieve any other Bank from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the
88
96
parties to this Agreement and their respective successors and assigns.
SECTION 9.07. EXPENSES; INDEMNIFICATION. (a) The Borrower shall
reimburse the Administrative Agent for any reasonable costs and out-of-pocket
expenses (including Attorney Costs) paid or incurred by the Administrative Agent
in connection with (i) the preparation, review, execution, delivery, amendment,
modification, administration and collection of the Credit Documents and (ii) the
syndication of the Total Commitment Amount to the Banks (but not any assignment
or participation pursuant to ARTICLE XII). The Borrower shall reimburse the
Administrative Agent and each Bank for any reasonable costs, internal legal
charges and out-of-pocket expenses (including reasonable fees and time charges
of any attorneys for such Bank or the Administrative Agent, which attorneys may
be employees of such Bank or the Administrative Agent) paid or incurred by such
Bank or Administrative Agent in connection with the enforcement of the Credit
Documents. The Borrower acknowledges that the Administrative Agent has
determined that the requirements of Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 and regulations promulgated
pursuant thereto by the Board of Governors of the Federal Reserve System and the
Office of the Comptroller of the Currency concerning appraisals for certain real
estate financings do not apply to the transactions contemplated by this
Agreement. If such requirements are subsequently determined to apply to the
transactions contemplated hereby, the Borrower shall reimburse the
Administrative Agent for any costs and expenses incurred in connection with
appraisals obtained pursuant to such requirements.
(b) The Borrower further agrees to indemnify the Administrative Agent,
each Bank, and each of their respective directors, officers, employees and
agents (each an "INDEMNIFIED PARTY") against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including all Attorney Costs and
other expenses of litigation or preparation therefor, whether or not the
Administrative Agent or any Bank is a party thereto) (all of the foregoing, the
"INDEMNIFIED LIABILITIES") which any of them may pay or incur arising out of or
relating to this Agreement, the other Credit Documents, the "Refinancing
Documents" (as defined in the 1993 Agreement), the "Xxxx/Chilmark Acquisition
Documents" (as defined in the 1993 Agreement), the "Tender Credit Documents" (as
defined in the Original Amended Credit Agreement), the transactions contemplated
hereby or the direct or indirect application or proposed application of the
proceeds of any Loan hereunder (including any loss, damage, penalty, judgment,
liability and expense that would not have been paid or incurred but for (x) a
portion of the Credit Extensions hereunder having been extended under the
Original Amended Credit Agreement, the Second Amended Credit Agreement, the 1993
Agreement or the Existing Agreement or (y) this Agreement being a restatement of
the Existing Agreement),
89
97
except to the extent it is determined by a judgment of a court that is binding
on the relevant Indemnified Party and is final and not subject to appeal, that
such losses, claims, damages, penalties, judgments, liabilities or expenses were
the result of acts or omissions on the part of such Indemnified Party
constituting gross negligence or willful misconduct. If and to the extent that
the foregoing indemnity is unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of such amounts which is permissible under Applicable Law. The obligations of
the Borrower under this SECTION 9.07 (and the obligations of the Borrower under
Section 9.07 of each of the Existing Agreement, the 1993 Agreement, the Second
Amended Credit Agreement and the Original Amended Credit Agreement shall survive
the termination of this Agreement.
SECTION 9.08. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Banks, and the Administrative Agent shall furnish such counterparts
to the Banks.
SECTION 9.09. SEVERABILITY OF PROVISIONS. Any provision in any Credit
Document that are held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction be inoperative, unenforceable or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability or validity of such provisions in any other
jurisdiction, and to this end the provisions of all Credit Documents are
declared to be severable.
SECTION 9.10. NONLIABILITY OF BANKS. The relationship between the
Borrower and the Banks and the Administrative Agent shall be solely that of
borrower and lenders. Neither the Administrative Agent nor any Bank shall have
any fiduciary responsibilities to the Borrower under or in connection with the
Credit Documents. Neither the Administrative Agent nor any Bank undertakes any
responsibility to the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's business or operations.
SECTION 9.11. CHOICE OF LAW. THE CREDIT DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE FULLY PERFORMED IN SUCH STATE, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
SECTION 9.12. CONSENT TO JURISDICTION. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION
OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE CITY OF NEW
YORK IN ANY ACTION OR
90
98
PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENTS AND THE BORROWER,
THE ADMINISTRATIVE AGENT AND EACH BANK HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVE ANY OBJECTION THEY MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY BANK OR THE BORROWER TO BRING PROCEEDINGS AGAINST THE
BORROWER OR THE ADMINISTRATIVE AGENT OR ANY BANK, AS THE CASE MAY BE, IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE ADMINISTRATIVE AGENT OR ANY BANK OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT OR ANY BANK INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY CREDIT DOCUMENT
SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK, TO THE EXTENT THAT
JURISDICTION MAY BE EFFECTED AGAINST THE ADMINISTRATIVE AGENT OR SUCH BANK, WITH
RESPECT TO THE APPLICABLE SUBJECT MATTER, IN NEW YORK, NEW YORK.
SECTION 9.13. WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY CREDIT DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
SECTION 9.14. LIMITATION ON ADMINISTRATIVE AGENT AND BANK LIABILITY.
The Borrower agrees that (i) neither the Administrative Agent nor any Bank shall
have any liability to the Borrower (whether sounding in tort, contract or
otherwise) for losses suffered by the Borrower in connection with, arising out
of, or in any way related to the transactions contemplated and the relationship
established by the Credit Documents, or any act, omission or event occurring in
connection therewith, except to the extent it is determined by a judgment of a
court that is binding on the Administrative Agent or such Bank and is final and
not subject to appeal that such losses were the result of acts or omissions on
the part of the Administrative Agent or such Bank, as the case may be,
constituting gross negligence or willful misconduct, and (ii) the Borrower
waives, releases and agrees not to xxx upon any claim against the Administrative
Agent or any Bank (whether sounding in tort, contract or otherwise) except to
the extent a claim is based upon gross negligence or willful misconduct. Whether
or not such damages are related to a claim that is subject to the waiver
effected above and whether or not such waiver is effective, neither the
Administrative Agent nor any Bank shall have any liability with respect to, and
the Borrower hereby waives, releases and agrees not to xxx upon any claim for,
any special, indirect or consequential damages suffered by the Borrower in
connection with, arising out of, or in any way related to the transactions
contemplated or the relationship established by the Credit Documents, or any
act,
91
99
omission or event occurring in connection therewith, except to the extent it is
determined by a judgment of a court that is binding on the Administrative Agent
or such Bank, as the case may be, and is final and not subject to review on
appeal, that such damages were the result of acts or omissions on the part of
the Administrative Agent or such Bank, as the case may be, constituting gross
negligence or willful misconduct.
SECTION 9.15. CONFIDENTIALITY. The Administrative Agent and each Bank
shall hold confidential all non-public information (which has been identified as
such by the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary and reasonable procedures for handling
confidential information of this nature and in accordance with safe and sound
lending practices, but in any event may (a) make disclosure to their respective
examiners, Affiliates, outside auditors, counsel and other professional advisors
reasonably necessary in connection with this Agreement or as reasonably required
by any then-current or prospective transferee or participant, subject to SECTION
12.02(G), in connection with the contemplated transfer or participation by a
Bank of any Obligations or as required or requested by any governmental agency
or representative thereof or pursuant to legal process or (b) make disclosure of
any such information that becomes publicly available other than through the
actions of the Administrative Agent or any Bank constituting a breach of its
obligations under this SECTION 9.15. For purposes hereof, such confidential
information shall include the financial statements, reports and information
provided to the Administrative Agent and the Banks pursuant to SECTIONS 6.01.01
(D), (E), (F), and (g), SECTION 6.01.08 and SECTION 6.01.13.
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.01. APPOINTMENT AND AUTHORIZATION. Each Bank hereby
irrevocably (subject to Section 10.09) appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Credit Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Credit Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Credit Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
92
100
shall be read into this Agreement or any other Credit Document or otherwise
exist against the Administrative Agent.
SECTION 10.02. DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement or any other Credit Document by
or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
SECTION 10.03. LIABILITY OF ADMINISTRATIVE AGENT. None of the
Agent-Related Persons shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Credit Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct), or (ii) be responsible in any manner to
any of the Banks for any recital, statement, representation or warranty made by
the Borrower or any Subsidiary or Affiliate of the Borrower, or any officer
thereof, contained in this Agreement or in any other Credit Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Credit Document, or for the value of or title to any
Collateral, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Credit Document, or for any failure
of the Borrower or any other party to any Credit Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of the Borrower or any of the Borrower's Subsidiaries or Affiliates.
SECTION 10.04. RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Credit Document
unless it shall first receive such advice or concurrence of the
Required Banks (or, if required by SECTION 8.01, all Banks) as it deems
appropriate and, if it
93
101
so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or any other Credit
Document in accordance with a request or consent of the Required Banks
(or, if required by SECTION 8.01, all Banks) and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in SECTION 4.02, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the
Administrative Agent to such Bank for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by
or acceptable or satisfactory to the Bank.
SECTION 10.05. NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Banks, unless the
Administrative Agent shall have received written notice from a Bank or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default". The Administrative Agent will notify the
Banks of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be requested by the Required
Banks in accordance with ARTICLE VII; PROVIDED, HOWEVER, that unless and until
the Administrative Agent has received any such request, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable or in the
best interest of the Banks.
SECTION 10.06. CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries, the
value of and title to any Collateral, and all
94
102
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Credit Documents, and to
make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition of creditworthiness of the Borrower which may come into the possession
of any of the Agent-Related Persons.
SECTION 10.07. INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not
the transactions contemplated hereby are consummated, the Banks shall indemnify
upon demand the Agent-Related Persons (to the extent not reimbursed by or on
behalf of the Borrower and without limiting the obligation of the Borrower to do
so), pro rata, from and against any and all Indemnified Liabilities; PROVIDED,
HOWEVER, that no Bank shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Credit Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent is not reimbursed for such expenses by or
on behalf of the Borrower. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
SECTION 10.08. ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. BAI and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Borrower and its Subsidiaries and Affiliates as though BAI were not the
Administrative Agent hereunder and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such
95
103
activities, BAI or its Affiliates may receive information regarding the Borrower
or its Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or such Subsidiary) and acknowledge that
the Administrative Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BAI shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Administrative Agent, and the terms "Bank" and "Banks"
include BAI in its individual capacity.
SECTION 10.09. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may, and at the request of the Required Banks shall, resign as Administrative
Agent upon 30 days' notice to the Banks. If the Administrative Agent resigns
under this Agreement, the Required Banks shall appoint from among the Banks a
successor administrative agent for the Banks which successor administrative
agent shall be approved by the Borrower. If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Banks and
the Borrower, a successor administrative agent from among the Banks. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this ARTICLE X and SECTION 9.07 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor administrative
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Banks shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Banks appoint a
successor administrative agent as provided for above.
SECTION 10.10. WITHHOLDING TAX.
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Administrative Agent, to deliver to the
Administrative Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax
96
104
treaty, properly completed IRS Forms 1001 and W-8 before the payment of
any interest in the first calendar year and before the payment of any
interest in each third succeeding calendar year during which interest
may be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Bank and in each succeeding taxable year of such Bank during which
interest may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Borrower to such Bank, such Bank agrees to
notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Borrower to such Bank. To the
extent of such percentage amount, the Administrative Agent will treat such
Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Borrower to such Bank, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount equivalent to the
applicable withholding tax.
97
105
(e) If the IRS or any other governmental authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not delivered, was not properly
executed, or because such Bank failed to notify the Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall indemnify
the Administrative Agent fully for all amounts paid, directly or indirectly, by
the Administrative Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Administrative Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
SECTION 10.11. SYNDICATION AGENT; DOCUMENTATION AGENT. None of the
Banks identified on the facing page or signature pages of this Agreement as a
"Syndication Agent" or "Documentation Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified as a "Syndication Agent" or "Documentation Agent" shall
have or be deemed to have any fiduciary relationship with any Bank. Each Bank
acknowledges that it has not relied, and will not rely, on any of the Banks so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
SECTION 11.01. SETOFF. In addition to, and without limitation of, any
rights of the Banks under Applicable Law, if the Borrower becomes insolvent,
however evidenced, or any Event of Default (or any Default described in SECTION
7.01(H) or (I)) occurs and is continuing, any indebtedness from any Bank to the
Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be set off and applied toward the
payment of the Obligations owing to such Bank, whether or not the Obligations,
or any part thereof, shall then be due; PROVIDED that the Required Banks shall
consent thereto and that such Bank shall notify the Borrower of any such setoff
promptly thereafter.
SECTION 11.02. RATABLE PAYMENTS. If any Bank, whether by setoff or
otherwise, has payment made to it upon its Credit Extensions in a greater
proportion than that received by any other
98
106
Bank (other than as expressly permitted hereunder), such Bank agrees, promptly
upon demand, to purchase a portion of the Credit Extensions held by the other
Banks so that after such purchase each Bank will hold its ratable proportion of
Credit Extensions. If any Bank, whether in connection with setoff or amounts
which might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations on such amounts which may be subject to set off,
such Bank agrees, promptly upon demand, to take such action necessary such that
all Banks share in the benefits of such collateral ratably in proportion to
their Credit Extensions. In case any such payment is disturbed by legal process
or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
SECTION 12.01. SUCCESSORS AND ASSIGNS. The terms and provisions of the
Credit Documents shall be binding upon and inure to the benefit of the Borrower
and the Banks and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights under the Credit
Documents and any assignment by any Bank must be made in compliance with SECTION
12.02. 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
Credit Extension, shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Credit Extension.
SECTION 12.02. ASSIGNMENTS AND PARTICIPATIONS. Assignments by Banks of,
and the granting of participations in, their rights and obligations arising
under and with respect to this Agreement shall be permitted as follows:
(a) Subject to the provisos set forth at the end of this
CLAUSE (A), each Bank may, upon the giving in writing to the
Administrative Agent of at least three Business Days' prior notice or
the delivery of the Assignment and Acceptance referred to in CLAUSE
(B)(V) below (of which notice or Assignment and Acceptance the
Administrative Agent shall promptly inform the Borrower), assign to one
or more Banks, or to other banks, savings and loan associations,
insurance companies, pension funds, mutual funds, commercial finance
companies and other similar financial institutions having capital and
surplus of at least $100,000,000 (an "ELIGIBLE ASSIGNEE"), all or a
portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment, Loans and Reimbursement Obligations
and its obligation to participate, and its participations, in Letters
of Credit and Swing Loans) subject only to the conditions set
99
107
forth in CLAUSE (B) below; PROVIDED that, so long as no Default exists,
upon disclosing any non-public information (which has been identified
as such by the Borrower) relating to the Borrower to any prospective
assignee (and at least three Business Days before the date such Bank
gives the notice or delivers the Assignment and Acceptance referred to
above), such Bank shall notify the Borrower of its intention to make an
assignment; and PROVIDED FURTHER, that any assignment to any Eligible
Assignee other than an Affiliate of such Bank shall require the prior
written consents of the Administrative Agent and the Borrower, which
consents shall not be unreasonably withheld or delayed (it being
understood that failure of a Bank to comply with its obligations under
the first proviso to this CLAUSE (A) shall not, in and of itself,
constitute a reasonable basis to withhold consent to an assignment).
(b) Any assignments made pursuant to this SECTION 12.02 shall
comply with the following conditions:
(i) each such assignment shall be of a constant, and
not a varying, percentage of all of the assigning Bank's
rights and obligations hereunder (including its Commitment,
its Loans, its right to payment of Reimbursement Obligations
and its obligations to participate, and its participations, in
Letters of Credit and Swing Loans);
(ii) the amount of the Commitment of the assigning
Bank being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall (except in the case of
assignments to other Banks or an assignment by a Bank of all
of its Commitment and Credit Extensions) in no event be less
than $5,000,000 and the aggregate amount of the Commitment
retained by such assigning Bank, after giving effect to such
assignment, shall be not less than $5,000,000;
(iii) each such assignment shall be to another Bank
or to an Eligible Assignee;
(iv) no such assignment shall violate any "blue sky"
or other securities law of any jurisdiction or shall require
the Borrower to file a registration statement with the
Commission or apply to qualify any Commitment or Credit
Extension, or any interest in any thereof, under the "blue
sky" or other securities law of any jurisdiction; and
100
108
(v) the parties to each such assignment shall execute
and deliver to the Administrative Agent at least three
Business Days prior to its effective date, for its recording
in the Register, an Assignment and Acceptance substantially in
the form of EXHIBIT L (an "ASSIGNMENT AND ACCEPTANCE"),
together with any Note subject to such assignment and a
processing and recordation fee of $4000, payable by the
assignee. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such
Assignment and Acceptance, and subject to CLAUSE (A) above,
(x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder with
respect to the Credit Extensions and Commitment thereby
assigned, including the right to approve or disapprove actions
with respect to such Credit Extensions and Commitment which
require the approval of the Required Banks or all Banks, and
(y) the assigning Bank thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its unmatured obligations under
this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an
assigning Bank's rights and obligations under this Agreement,
such Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such
assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or with
respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such assigning
Bank makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations
under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such
assigning Bank or any other
101
109
Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) unless such
assignee is a Bank, such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform
in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain at its address
specified pursuant to ARTICLE XIII a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the Commitment
of, and principal amounts of the Credit Extensions owing to, each Bank
from time to time (the "REGISTER"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for
all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Bank at any reasonable time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee representing (unless it is a Bank)
that it is an Eligible Assignee, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT L, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(f) Each Bank may, subject to giving prior written notice to
the Borrower, sell participations to participants in or to all or a
portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment, Loans, Reimbursement Obligations,
and obligations to participate, and participations, in Letters of
Credit); PROVIDED that (i) such Bank's obligations under this Agreement
(including its Commitment to the Borrower hereunder) shall remain
unchanged; (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations; (iii) such Bank
shall remain the holder of any applicable Note for all purposes of this
Agreement; (iv) the Borrower, the Administrative Agent and the other
Banks shall continue to deal solely and directly with such Bank in
102
110
connection with such Bank's rights and obligations under this
Agreement; (v) any participant which is not an Affiliate of such Bank
shall have no right to require such Bank to take or omit to take any
action under this Agreement, except action extending the maturity of
any Loan, reducing the interest rate or fees on any Loan in which such
participation was sold, forgiving any principal of or interest or fees
payable hereunder or releasing all or substantially all of the
Collateral to the extent such Bank has a right to take or omit to take
such action; and (vi) any participant shall have the right to payments
from the Borrower pursuant to SECTION 2.19, 3.01(A) or 3.03 only to the
extent such Bank had such right. Each Bank agrees to incorporate the
requirements set forth in the preceding sentence into each
participation agreement which such Bank enters into with any
participant. The Borrower agrees that if amounts outstanding under this
Agreement are due and unpaid, or shall have been declared or shall have
become due and payable, each participant shall, to the extent permitted
by Applicable Law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement; PROVIDED that any
participant exercising such right shall be obligated to share with the
Banks, as if such participant were a "Bank" hereunder, the amount of
any such setoff.
(g) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
SECTION 12.02, disclose to the assignee or participant, or proposed
assignee or participant, any information relating to the Borrower
furnished to such Bank by or on behalf of the Borrower; PROVIDED that,
prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of
any confidential information relating to the Borrower received by it
from such Bank to the same extent as the Banks hereunder.
(h) Notwithstanding the foregoing provisions of this SECTION
12.02, each Bank may at any time create a security interest in all or
any portion of its rights hereunder (including the Loans owing to it)
in favor of any Federal Reserve Bank in accordance with Regulation A of
the Board of Governors of the Federal Reserve System. For purposes of
facilitating any such pledge, the Borrower will, promptly upon request
of any Bank, execute and deliver to such Bank one or more notes (in
form and substance reasonably satisfactory to the Borrower and such
Bank) evidencing such Bank's Revolving Loans in partial substitution
for the Global Revolving Note (and the Administrative Agent will attach
an allonge to the
103
111
Global Revolving Note to indicate that such Bank's Revolving Loans are
evidenced by the note issued to such Bank and that the principal amount
of Revolving Loans evidenced by the Global Revolving Note is reduced by
the principal amount of such note).
SECTION 12.03. TAX TREATMENT. If, pursuant to this ARTICLE XII, any
interest in any Credit Document is transferred to any assignee or participant
(each a "TRANSFEREE") which is organized under the laws of any jurisdiction
other than the United States or any State thereof, the transferor Bank shall
cause such Transferee, concurrently with the effectiveness of such transfer, (i)
to represent to the transferor Bank (for the benefit of the transferor Bank, the
Administrative Agent and the Borrower) that under Applicable Law and treaties no
Taxes will be required to be withheld by the Administrative Agent, the Borrower
or the transferor Bank with respect to any payments to be made to such
Transferee in respect of the Loans, (ii) to furnish to the transferor Bank, the
Administrative Agent and the Borrower either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 or successor form (wherein such
Transferee claims entitlement to complete exemption from U.S. Federal
withholding tax on all interest payments hereunder) and (iii) to agree (for the
benefit of the transferor Bank, the Administrative Agent and the Borrower) to
provide the transferor Bank, the Administrative Agent and the Borrower a new
Form 4224 or Form 1001 upon the obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws and
regulations, duly executed and completed by such Transferee, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
ARTICLE XIII
NOTICES
SECTION 13.01. GIVING NOTICE. Any notice required or permitted to be
given under this Agreement may be, and shall be deemed, given (a) three Business
Days after being deposited in the United States mail, postage prepaid, or (b) by
overnight delivery service on the Business Day after being delivered to
representatives of any major overnight delivery service, charges prepaid,
addressed to the Borrower, the applicable Bank or the Administrative Agent at
the address indicated below its signature to this Agreement or on the applicable
Assignment and Acceptance (subject to change pursuant to SECTION 13.02) or (c)
by facsimile when transmitted by facsimile; PROVIDED that notices and
communications to the Administrative Agent shall not be effective until received
by the Administrative Agent.
104
112
SECTION 13.02. CHANGE OF ADDRESS. The Borrower, the Administrative
Agent and any Bank may each change the address for service of notice upon it by
a notice in writing to the Borrower and the Administrative Agent.
ARTICLE XIV
COUNTERPARTS; REFERENCES; CONFIRMATION
SECTION 14.01. COUNTERPARTS. This Agreement and any other Credit
Document may be executed in any number of counterparts, all of which taken
together shall constitute one agreement, and any of the parties hereto or
thereto may execute this Agreement or any such other Credit Document,
respectively, by signing any such counterpart.
SECTION 14.02. REFERENCES. References to the Original Amended Credit
Agreement, the Second Amended Credit Agreement, the 1993 Agreement or the
Existing Agreement in any Credit Document shall be deemed to include such
document as restated hereby, whether or not reference is made to this Agreement.
SECTION 14.03. CONFIRMATION. The Borrower hereby confirms to the Banks
and the Administrative Agent that (i) each Credit Document to which the Borrower
is a party continues in full force and effect on and after the date hereof and
is the legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms and (ii) the obligations and
liabilities secured under each Credit Document include any and all obligations
and liabilities of the Borrower to the Banks under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
105
113
IN WITNESS WHEREOF, the Borrower, the Banks and the Administrative
Agent have executed this Agreement as of the date first above written.
SEALY CORPORATION
By:
-----------------------------------
Title:
-----------------------------------
Xxx Xxxxx Xxxxxxxx
00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx
BANK OF AMERICA ILLINOIS,
as Administrative Agent
By:
-----------------------------------
Title:
-----------------------------------
Agency Administrative Services
#5596, 12th Floor
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxx
BANK OF AMERICA ILLINOIS,
as a Bank
By:
-----------------------------------
Title:
-----------------------------------
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxxx X. Xxxxxxxx
106
114
BANQUE PARIBAS, individually and as
Documentation Agent
By:
-----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxx
NATIONSBANK, N.A., individually
and as Syndication Agent
By:
-----------------------------------
Title:
-----------------------------------
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. XxXxx
THE BANK OF NEW YORK
By:
-----------------------------------
Title:
-----------------------------------
Midwest Division
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxx
107
115
BANK OF NOVA SCOTIA
By:
-----------------------------------
Title:
-----------------------------------
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx Xx
CAISSE NATIONALE DE CREDIT AGRICOLE S.A.
By:
-----------------------------------
Title:
-----------------------------------
00 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx XxXxxxxx
108
116
CREDIT LYONNAIS CHICAGO BRANCH
By:
-----------------------------------
Title:
-----------------------------------
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 312-641-0527
Attention: Xxxx Xxxxx
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By:
-----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxx Xxxxxxxx
with a copy to:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx Xxxx
109
117
FIRST BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Title:
-----------------------------------
First Bank Place
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx
NBD BANK
By:
-----------------------------------
Title:
-----------------------------------
Mail Xxxxx 0000
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx Xxxxxx
With a copy to:
000 Xxxx Xxxx
Xxxxxxxx Xxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx X. Xxxxxxx
110
118
MELLON BANK, N.A.
By:
-----------------------------------
Title:
-----------------------------------
One Mellon Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxx
With a copy to:
00 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxx
NATIONAL BANK OF CANADA
By:
-----------------------------------
Title:
-----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
0000 Xxxx 0xx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxxxx
111
119
NATIONAL CITY BANK
By:
-----------------------------------
Title:
-----------------------------------
Metro/Ohio Locator #2104
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
PNC BANK, NATIONAL ASSOCIATION
By:
-----------------------------------
Title:
-----------------------------------
One PNC Plaza
000 Xxxxx Xxxxxx
X0-XXXX-00-0
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxx Xxxxxxxxxx
112
120
SCHEDULE I
----------
DISCLOSURE SCHEDULE
-------------------
See Attached.
I-1
121
SCHEDULE II
-----------
PRICING SCHEDULE
----------------
The Commitment Fee Rate, the Margin and the L/C Fee Rate (the
"Applicable Rates") shall be determined based upon the applicable Adjusted
Senior Leverage Ratio set forth below.
====================================================================================================================================
L/C Fee Rate Margin
--------------------------------------------------------
Standby Commercial
Commitment Fee Letter of Letter of Eurodollar Floating
Adjusted Senior Leverage Ratio Rate Credit Credit Rate Rate
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 2.75 to 1 0.375% 1.750% 1.250% 1.750% 0.500%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 2.5 to 1 but less than 2.75 to 1 0.375% 1.625% 1.125% 1.625% 0.375%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 2.25 to 1 but less than 2.5 to 1 0.375% 1.500% 1.000% 1.500% 0.250%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 2.0 to 1 but less than 2.25 to 1 0.375% 1.375% 0.875% 1.375% 0.125%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 1.75 to 1 but less than 2.0 to 1 0.375% 1.250% 0.750% 1.250% 0.000%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 1.5 to 1 but less than 1.75 to 1 0.300% 1.125% 0.750% 1.125% 0.000%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 1.25 to 1 but less than 1.5 to 1 0.300% 1.000% 0.750% 1.000% 0.000%
------------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 1.0 to 1 but less than 1.25 to 1 0.250% 0.875% 0.750% 0.875% 0.000%
------------------------------------------------------------------------------------------------------------------------------------
Less than 1.0 to 1 0.250% 0.750% 0.750% 0.750% 0.000%
====================================================================================================================================
The Applicable Rates shall be adjusted from time to time based on the
Adjusted Senior Leverage Ratio determined as of the end of the most
recently-ended Fiscal Quarter for which the Borrower has delivered financed
statements pursuant to CLAUSE (A) or (B) of SECTION 6.01.01, as the case may be,
as shown in a certificate delivered by the Borrower to the Administrative Agent,
IT BEING UNDERSTOOD that (i) each Applicable Rate shall be effective from and
after the fifth Business Day after any such financial statements are delivered
and (ii) if the Borrower fails to deliver any such financial statements by the
date required by SECTION 6.01.01, each Applicable Rate shall be adjusted, until
the date such statements are delivered, to the rate which would apply if the
Adjusted Senior Leverage Ratio were greater than 2.75 to 1. Notwithstanding
anything set forth above, prior to August 31, 1997 the Commitment Fee Rate shall
not be less than 0.375%, the L/C Fee Rate shall not be less than 1.25% for
Standby Letters of Credit and 0.75% for Commercial Letters of Credit, and the
Margin shall not be less than 1.25% for the Eurodollar Rate (it being understood
that on such date, if applicable, each of the foregoing shall be adjusted based
on the Adjusted Senior Leverage Ratio as of June 1, 1997).
II-1
122
SCHEDULE 2.01
-------------
INITIAL COMMITMENTS AND PERCENTAGES
-----------------------------------
=========================================================================================================================
BANK COMMITMENT PERCENTAGE
-------------------------------------------------------------------------------------------------------------------------
Bank of America Illinois $ 27,500,000 10.000000000%
-------------------------------------------------------------------------------------------------------------------------
Banque Paribas $ 27,500,000 10.000000000%
-------------------------------------------------------------------------------------------------------------------------
NationsBank, N.A. $ 27,500,000 10.000000000%
-------------------------------------------------------------------------------------------------------------------------
The Bank of New York $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
Bank of Nova Scotia $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
Caisse Nationale De Credit Agricole $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
Dresdner Bank AG $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
First National Bank Association $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
NBD Bank $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
National Bank of Canada $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
National City Bank $ 17,500,000 6.363636364%
-------------------------------------------------------------------------------------------------------------------------
PNC Bank, National Association $ 17,500,000 6.363636364%
------------
-------------------------------------------------------------------------------------------------------------------------
TOTAL $275,000,000 100%*
=========================================================================================================================
--------
* Percentages do not total exactly 100% due to rounding.
1
123
SCHEDULE 2.20.01(A)
-------------------
ISSUERS OF LETTERS OF CREDIT
----------------------------
Banque Paribas
Bank of America Illinois
1
124
SCHEDULE 2.20.01(B)
-------------------
LETTERS OF CREDIT OUTSTANDING
-----------------------------
ISSUER BENEFICIARY AMOUNT MATURITY TYPE
----------------------------------------------------------------------------------------------------------------------
Banque Paribas Lumbermen's $1,020,552.00 5/6/97 Standby
Mutual
Banque Paribas Lumbermen's $1,107,879.00 5/6/97 Standby
Mutual
Banque Paribas Hartford Fire $4,739,577.00 6/2/97 Standby
Insurance
Banque Paribas Hartford Fire $4,485,124.00 9/19/97 Standby
Insurance
Banque Paribas Transcontinental $222,000.00 9/19/97 Standby
Tech.
Banque Paribas Continental $ 1,491,000.00 9/19/97 Standby
Casualty --------------
$13,066.132.00
==============
1
