1
EXHIBIT 10.12
AMENDED AND RESTATED
CREDIT AGREEMENT
BY AND AMONG
X'XXXXXXXX INDUSTRIES, INC.
AND
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
AS BORROWERS
AND
X'XXXXXXXX INDUSTRIES-VIRGINIA, INC.
AS A GUARANTOR AND LETTER OF CREDIT ACCOUNT PARTY
AND
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
AS AGENT AND ISSUER OF LETTERS OF CREDIT
AND
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
AND
WACHOVIA BANK OF GEORGIA, N.A.
AS PARTICIPATING LENDERS
NOVEMBER 22, 1994
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TABLE OF CONTENTS
Page
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Recitals .............................................................................. 1
Agreement ............................................................................. 1
1. Definitions ................................................................... 2
1.1. Generally ............................................................... 2
1.2. References to Borrower .................................................. 2
1.3. References to Applicable Lending Office ................................. 2
1.4. References to Covered Person ............................................ 2
1.5. Accounting Terms; Consolidated Basis .................................... 2
1.6. "Satisfactory to Lender"; "Discretion" .................................. 2
2. Commitments ................................................................... 2
2.1. Revolving Loan Facility ................................................. 2
2.1.1. Advances ........................................................ 3
2.1.2. Limitation on Advances .......................................... 3
2.2. Letters of Credit ....................................................... 3
2.2.1. Documentary (Commercial) and Standby Letters of Credit .......... 3
2.2.2. IRB Letter of Credit ............................................ 3
2.2.3. Lenders' Participations ......................................... 4
2.2.4. Replacement of IRB Letter of Credit ............................. 4
3. Interest ...................................................................... 4
3.1. Rates ................................................................... 4
3.2. Definition of Alternate Base Rate ....................................... 4
3.3. Definition of Adjusted LIBO Rate ........................................ 4
3.3.1. "LIBO Rate" ..................................................... 5
3.4. Interest Periods for LIBOR Tranches ..................................... 5
3.5. Conversion of Tranches .................................................. 5
3.6. Rate After Maturity ..................................................... 6
3.7. Time of Accrual ......................................................... 6
3.8. Computation ............................................................. 6
3.9. Usury ................................................................... 6
.................................
4. Fees .......................................................................... 6
4.1. Facility Fee ............................................................ 6
4.2. Standby LC Fee .......................................................... 6
4.3. Fees for Commercial LC's ................................................ 6
4.4. IRB LC Fee .............................................................. 7
4.5. Calculation of Fees ..................................................... 7
5. Payments ...................................................................... 7
5.1. Scheduled Payments on Revolving Loans ................................... 7
5.1.1. Interest ........................................................ 7
5.1.2. Principal ....................................................... 7
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5.2. Prepayments on Revolving Loans and Reduction of Revolving Commitment .... 7
5.2.1. Voluntary ....................................................... 7
5.2.2. Reduction of Commitment ......................................... 7
5.2.3. Mandatory Prepayment for Over Advances .......................... 7
5.3. Reimbursement for Draws on Letters of Credit ............................ 8
5.4. Manner of Payments and Timing of Application of Payments ................ 8
5.4.1. Payment Requirement ............................................. 8
5.4.2. Application of Payments ......................................... 8
5.4.3. Returned Instruments ............................................ 8
5.4.4. Compelled Return of Payments or Proceeds ........................ 8
5.5.Due Dates Not on Business Days ...................................... 8
6. Procedure for Use of Facilities ............................................... 9
6.1. Advances ................................................................ 9
6.1.1. Advance Requests by Borrower .......................................... 9
6.1.2. Lenders' Right to Make Other Advances ................................. 9
6.1.3. Agent's Notice to Lenders; Funds Deposit .............................. 9
6.1.4. Advances Ratable ...................................................... 9
6.1.5. Agent's Availability Assumption ....................................... 9
6.1.6. Suspension of Obligation to Make LIBOR Tranches ....................... 10
6.2. Letters of Credit ..................................................... 10
7. Yield Protection .............................................................. 11
7.1.Compensation for Increase In LIBOR Tranche Costs .......................... 11
7.2.Funding Losses ............................................................ 11
8. Guaranty ...................................................................... 12
9. Conditions to Advances ........................................................ 12
9.1. Conditions to Initial Advances .......................................... 12
9.1.1. No Default ...................................................... 12
9.1.2. Representations and Warranties .................................. 12
9.1.3. Material Adverse Change ......................................... 12
9.1.4. Pending Material Proceedings .................................... 12
9.2. Conditions to Subsequent Advances ....................................... 12
9.2.1. No Default ...................................................... 13
9.2.2. Material Adverse Change ......................................... 13
10. Conditions to Issuance of Letters of Credit ................................... 13
10.1. Reimbursement Agreement ................................................ 13
10.2. Other Conditions ....................................................... 13
11. Representations and Warranties ................................................ 13
11.1. Organization and Existence ............................................. 13
11.2. Authorization .......................................................... 13
11.3. Due Execution .......................................................... 13
11.4. Enforceability of Obligations........................................... 13
11.5. Burdensome Obligations ................................................. 13
11.6. Legal Restraints ....................................................... 14
11.7. Labor Disputes ......................................................... 14
11.8. No Material Proceedings ................................................ 14
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11.9. Compliance with Laws ............................................ 14
11.9.1. Compliance .................................................. 14
11.9.2. Proceedings ................................................. 14
11.9.3. Investigations .............................................. 14
11.9.4. Hazardous Material........................................... 14
11.10. Other Names ......................................................... 14
11.11. Financial Statements ................................................ 14
11.12. No Change in Condition .............................................. 15
11.13. No Defaults ......................................................... 15
11.14. Investments ......................................................... 15
11.15. Indebtedness ........................................................ 15
11.16. Indirect Obligations ................................................ 15
11.17. Operating Leases .................................................... 15
11.18. Tax Liabilities; Governmental Charges ............................... 15
11.19. Pension Benefit Plans ............................................... 15
11.19.1. Prohibited Transactions .................................... 15
11.19.2. Claims ..................................................... 15
11.19.3. Reporting and Disclosure Requirements ...................... 16
11.19.4. Accumulated Funding Deficiency ............................. 16
11.19.5. Multi-employer Plan ........................................ 16
11.20. Welfare Benefit Plans ............................................... 16
11.21. Retiree Benefits .................................................... 16
11.22. State of Property ................................................... 16
11.23. Margin Stock ........................................................ 16
11.24. Securities Matters .................................................. 16
11.25. Investment Company Act, Etc. ........................................ 16
11.26. No Material Misstatements or Omissions .............................. 17
11.27. Filings ............................................................. 17
11.28. Broker's Fees ....................................................... 17
12. Survival of Representations .................................................. 17
13. Affirmative Covenants ........................................................ 17
13.1. Use of Proceeds .................................................... 17
13.2. Corporate Existence ................................................ 17
13.3. Maintenance of Property and Leases ................................. 17
13.4. Insurance .......................................................... 17
13.5. Payment of Taxes and Other Obligations ............................. 18
13.6. Compliance With Laws ............................................... 18
13.6.1. Environmental Laws .......................................... 18
13.6.2. Pension Benefit Plans........................................ 18
13.6.3. Employment Laws ............................................. 18
13.7. Discovery and Clean-Up of Hazardous Material ....................... 18
13.7.1. In General .................................................. 18
13.8. Termination of Pension Benefit Plan ................................ 19
13.9. Notice to Agent of Material Events ................................. 19
13.10. Borrowing Officer .................................................. 20
13.11. Accounting System .................................................. 20
13.12. Financial Statements and Certificate of Compliance ................. 20
13.12.1. Annual Financial Statements ................................ 20
13.12.2. Quarterly Financial Statements ............................. 21
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13.13. Stockholder and SEC Reports .......................................... 21
13.14. Other Information .................................................... 21
13.15. Audits by Agent and Lenders .......................................... 21
13.16. Access to Officers ................................................... 21
14. Negative Covenants ........................................................... 22
14.1. Investments ........................................................ 22
14.2. Indebtedness ....................................................... 22
14.3. Indirect Obligations ............................................... 23
14.4. Security Interests ................................................. 23
14.5. Disposal of Property ............................................... 24
14.6. Capital Change ..................................................... 24
14.7. Change of Business ................................................. 24
14.8. Transactions With Affiliates ....................................... 24
14.9. Debt Payments ...................................................... 24
14.10. Conflicting Agreements ............................................. 24
14.11. New Subsidiaries ................................................... 24
14.12. Acquisitions ....................................................... 25
15. Financial Covenants .......................................................... 25
15.1. Special Definitions ................................................ 25
15.2. Maximum Indebtedness ............................................... 25
15.3. Minimum Current Ratio .............................................. 25
15.4. Tangible Net Worth ................................................. 25
16. Default ...................................................................... 26
16.1. Events of Default .................................................. 26
16.1.1. Failure to Pay Principal or Interest ....................... 26
16.1.2. Failure to Pay Other Amounts Owed to Lenders ............... 26
16.1.3. Failure to Pay Amounts Owed to Other Persons ............... 26
16.1.4. Representations or Warranties .............................. 26
16.1.5. Covenants .................................................. 26
16.1.6. Acceleration of Other Indebtedness ......................... 26
16.1.7. Default Under Other Agreements ............................. 26
16.1.8. Bankruptcy; Insolvency; Etc. ............................... 26
16.1.9. Judgments; Attachment; Etc. ................................ 27
16.1.10. Pension Benefit Plan Termination, Etc. ..................... 27
16.1.11. Liquidation or Dissolution ................................. 27
16.1.12. Seizure of Assets .......................................... 27
16.1.13. Change of Control .......................................... 27
16.1.14. Loan Documents ............................................. 27
16.2. Rights and Remedies in the Event of Default ........................ 28
16.2.1. Termination or Suspension of Commitments .................... 28
16.2.2. Acceleration ................................................ 28
16.2.3. Right of Setoff ............................................. 28
16.2.4. Miscellaneous ............................................... 28
16.2.5. Application of Funds ........................................ 28
16.3. Notice ............................................................. 28
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17. Agent and Lenders ..................................................... 28
17.1. Appointment of Agent .......................................... 28
17.2. Powers ........................................................ 29
17.3. General Immunity of Agent ..................................... 29
17.4. No Responsibility for Revolving Loans, Recitals, etc. ......... 29
17.5. Action on Instructions of Majority Lenders .................... 29
17.6. Employment of Agents and Counsel .............................. 29
17.7. Reliance on Documents; Counsel ................................ 29
17.8. Agent's Reimbursement and Indemnification ..................... 29
17.9. Rights as a Lender ............................................ 29
17.10. INDEPENDENT CREDIT DECISIONS .................................. 29
17.11. Successor Agent ............................................... 30
17.12. Notification of Lenders ....................................... 30
17.13. No Knowledge of Default ....................................... 30
17.14. Collections and Distributions to Lenders by Agent; Setoffs .... 30
18. General ............................................................... 31
18.1. Agent and Lenders' Right to Cure .............................. 31
18.2. Rights Not Exclusive .......................................... 31
18.3. Survival of Agreements ........................................ 31
18.4. Participations ................................................ 31
18.5. Payment of Expenses ........................................... 31
18.6. General Indemnity ............................................. 31
18.7. Letters of Credit ............................................. 32
18.8. Changes in Accounting Principles .............................. 32
18.9. Loan Records .................................................. 33
18.10. Choice of Forum ............................................... 33
18.11. Service of Process ............................................ 33
19. Miscellaneous ......................................................... 33
19.1. Computation of Time Periods ................................... 33
19.2. Notices ....................................................... 33
19.3. Confidentiality ............................................... 34
19.4. Amendments, Waivers and Consents .............................. 34
19.5. Successors and Assigns ........................................ 34
19.6. Severability .................................................. 34
19.7. Governing Law; No Third Party Rights .......................... 34
19.8. Captions ...................................................... 35
19.9. Counterpart and Facsimile Execution ........................... 35
19.10. Singular and Plural Forms ..................................... 35
19.11. References .................................................... 35
19.12. No Other Agreements .......................................... 35
19.13. Incorporation By Reference .................................... 35
19.14. Statutory Notice .............................................. 35
APPENDIX 1.1 GLOSSARY AND INDEX OF DEFINED TERMS .............................. i
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AMENDED AND RESTATED
CREDIT AGREEMENT
This is an Amended and Restated Credit Agreement (this "Agreement") by
and among X'Xxxxxxxx Industries, Inc., a Delaware corporation ("Industries");
and X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation ("Holdings");
X'Xxxxxxxx Industries - Virginia, Inc., a Virginia corporation and wholly owned
subsidiary of Industries ("X'Xxxxxxxx - Virginia"); The Boatmen's National Bank
of St. Louis, a national banking association ("Boatmen's"); and Wachovia Bank of
Georgia, N.A., a national banking association ("Wachovia").
RECITALS
A. Industries and Holdings as Borrowers, X'Xxxxxxxx - Virginia, as
Guarantor, Boatmen's as Funding Agent and Issuing Bank, Texas Commerce Bank
National Association, a national banking association, ("Texas Commerce") as
Syndication Agent, and Texas Commerce, Boatmen's, and Wachovia, as lenders are
parties to a Revolving Credit, Letter of Credit and Term Loan Agreement by and
among them dated as of the 31st day of January, 1994 (the "Original Loan
Agreement").
B. Texas Commerce is withdrawing as a lender and Industries, Holdings,
X'Xxxxxxxx - Virginia, Boatmen's, and Wachovia all desire to amend the Original
Loan Agreement to reflect (i) the withdrawal of Texas Commerce as a lender, (ii)
the substitution of Boatmen's as sole "Agent" as of the date hereof, (iii) the
elimination of the Total Maximum Term Commitment as defined in the Original Loan
Agreement, the Term Loan Commitment as defined in the Original Loan Agreement
having lapsed with no Term Loan having been made, and (iv) certain other changes
to which all of the parties have agreed.
AGREEMENT
Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged,
Industries, Holdings, X'Xxxxxxxx - Virginia, Boatmen's (as "Agent" and a
"Lender"), and Wachovia (as a "Lender" and, together with Boatmen's, "Lenders")
mutually agree as follows:
A. EFFECTIVE DATE. This Agreement shall become effective on November 22,
1994 (the "Effective Date"), as an amendment and restatement of the Original
Loan Agreement, subject to the following conditions:
(i) all of the documents and other items listed or described in Exhibit A
hereto shall have been delivered to Lenders, with each being (as applicable)
duly executed and (also as applicable) sealed, attested, acknowledged,
certified, or authenticated;
(ii) Lenders shall have received such other consents, approvals, opinions,
certificates or documents as they reasonably deem necessary;
(iii) The Lenders shall have fully paid to Texas Commerce in immediately
available funds their Prorata Shares (as defined herein) of the principal amount
of all advances that have been made to Borrower by Texas Commerce and which are
then outstanding plus all interest accrued thereon and accrued fees and other
amounts to which Texas Commerce is entitled as a lender under the terms of the
Original Loan Agreement but has not received, and Borrower shall have fully paid
to Texas Commerce such other fees to which it is entitled in a capacity other
than a lender under the terms of the Original Loan Agreement but has not
received; and
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(iv) Borrower shall have executed and delivered to Texas Commerce such documents
as Texas Commerce may require to evidence the termination of all of its
commitments to Borrower under the Original Loan Agreement, which Borrower
acknowledges are hereby terminated.
B. NO NOVATION. The obligations of Industries, Holdings, and X'Xxxxxxxx -
Virginia as outstanding on the Effective Date under the Original Loan Agreement
and all agreements, notes, certificates and documents executed and delivered in
connection therewith (with the exception of the term loans contemplated in the
Original Loan Agreement, which are hereby acknowledged to never have been made)
continue to be outstanding as "Loan Obligations" as defined herein, both with
Boatmen's and Wachovia as the only creditors with respect thereto in accordance
with their Prorata Shares (as defined herein), to the extent they are
outstanding on the Effective Date, there being no novation or refinancing
thereof made or intended as a consequence hereof.
C. AMENDMENT AND RESTATEMENT. Upon the Effective Date, the Original Loan
Agreement shall be deemed amended and restated to read in its entirety as
follows:
1. DEFINITIONS.
1.1. GENERALLY. Each capitalized term in this Agreement shall have the
meaning defined in the Glossary which is attached hereto as Appendix 1.1. If a
capitalized term is not defined in the Glossary, it shall have the meaning
defined elsewhere in this Agreement. If a capitalized term is not defined in
either the Glossary or elsewhere in this Agreement, it shall have the meaning
defined in the UCC.
1.2. REFERENCES TO BORROWER. The term "Borrower" herein refers to
Industries and Holdings both separately and collectively. The words "a
Borrower", "any Borrower", "each Borrower" and "every Borrower" refer to each
of Industries and Holdings separately. The obligations of Industries and
Holdings under the Loan Documents are joint and several.
1.3. REFERENCES TO APPLICABLE LENDING OFFICE. The term "Applicable
Lending Office" means the office of Agent at Xxx Xxxxxxx'x Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000.
1.4. REFERENCES TO COVERED PERSON. The term "Covered Person" means
each of Industries and Holdings and each of their Subsidiaries. The words "a
Covered Person", "any Covered Person", "each Covered Person" and "every Covered
Person" refer to Industries and Holdings and each of their Subsidiaries
separately.
1.5. ACCOUNTING TERMS; CONSOLIDATED BASIS. Unless the context
otherwise requires, accounting terms herein that are not defined herein shall be
calculated under GAAP. All financial measurements herein respecting "Borrower"
shall be made and calculated for Holdings and all of its Subsidiaries on a
consolidated basis in accordance with GAAP.
1.6. "SATISFACTORY TO LENDER"; "DISCRETION". Whenever herein a
document is required to be "satisfactory to Agent", "satisfactory to Lenders",
or "satisfactory to Majority Lenders", unless expressly stated otherwise such
document must be reasonably satisfactory to Agent or to Lenders, respectively,
in both form and substance. Whenever herein Agent, Lenders, or Majority Lenders
have the discretion to make a determination or to perform or not to perform any
act, such discretion shall be subject only to the requirement that it be
exercised in good faith.
2. COMMITMENTS. Subject to the terms and conditions hereof, and in
reliance upon the representations and warranties of Borrower herein:
2.1. REVOLVING LOAN FACILITY.
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2.1.1. ADVANCES. Each of Lenders commits to make advances to
Borrower (each an "Advance") from time to time during the period
commencing on the Effective Date and ending at the close of business on
December 31, 1996 (the "Ultimate Revolving Maturity Date"), in the
amount of such Lender's "Prorata Share" of each Advance as listed on
Exhibit 2.1.1 hereto. (The from time to time outstanding principal
balance of all Advances from Lenders is referred to herein as the
"Aggregate Revolving Loan" and each Lender's share thereof is referred
to herein as a "Revolving Loan".) The obligation of Borrower to repay
each Lender's Prorata Share of the Aggregate Revolving Loan shall be
evidenced by a promissory note in substantially the form attached hereto
as Exhibit 2.1.1.A and payable to the order of such Lender in a maximum
principal amount equal to its Revolving Commitment (individually a
"Note" and collectively the "Notes"). Amounts applied to reduce the
Aggregate Revolving Loan may be reborrowed as Advances as provided
herein, but no Advance will be made on or after the Ultimate Revolving
Maturity Date. At any time after an Event of Default occurs that is not
waived in writing by Lenders, Lenders may cancel or suspend the
Aggregate Revolving Commitment as provided in Section 16.2.
2.1.2. LIMITATION ON ADVANCES. No Advance will be made which
would result in the Aggregate Revolving Loan exceeding the Maximum
Available Amount. Lenders may, however, in their discretion make such
Advances, but shall not be deemed by doing so to have increased the
Maximum Available Amount and shall not be obligated to make any such
Advances thereafter. The "Maximum Available Amount" on any date shall be
an amount equal to (i) $40,000,000 (the "Aggregate Revolving
Commitment") or such lesser amount to which it may be reduced as
provided in Section 5.2.2, minus (ii) the Letter of Credit Exposure.
Each Lender's "Revolving Commitment" is its Prorata Share of the
Aggregate Revolving Commitment and is listed on Exhibit 2.1.1 hereto.
2.2. LETTERS OF CREDIT. Agent commits to issue Dollar denominated
letters of credit (each a "Letter of Credit") upon the application of and for
the account of one or more of Industries, Holdings, and X'Xxxxxxxx - Virginia
(the "Letter of Credit Commitment"), as follows:
2.2.1. DOCUMENTARY (COMMERCIAL) AND STANDBY LETTERS OF CREDIT.
Agent has issued and hereby reaffirms its commitment to issue from time
to time Dollar denominated documentary (commercial) and standby letters
of credit, each satisfactory to Lenders, for the account of Borrower and
any other applicant therefor in connection with transactions that are in
the ordinary course of business of the applicant or applicants, but only
if Lenders' Letter of Credit Exposure with respect to such requested
Letter of Credit and all outstanding Letters of Credit (other than the
IRB Letter of Credit) will not as a result of such issuance exceed the
lesser of (i) $7,000,000 or (ii) any excess of the Aggregate Revolving
Commitment over the Aggregate Revolving Loan. The expiration date of
any Letter of Credit (other than the IRB Letter of Credit) will not be
more than one year after its issuance date, subject to being renewed as
provided herein one or more times for periods of not more than one year,
and in no event, including upon a renewal, will be later than the
Ultimate Revolving Maturity Date.
2.2.2. IRB LETTER OF CREDIT. Agent has issued and there is now
outstanding, and Agent hereby reaffirms its prior commitment so to
issue, a single Dollar denominated standby letter of credit for the
account of Industries, Holdings, and X'Xxxxxxxx - Virginia, jointly and
severally, in the initial face amount of $10,750,000 for the benefit of
Tandy Corporation ("Tandy") and having an expiry date of October 1, 1998
(as originally issued or subsequently renewed, the "IRB Letter of
Credit"). The IRB Letter of Credit shall be drawable by Tandy as therein
provided if Tandy has made payment under its Guaranty Agreement dated as
of October 1, 1988, with Texas American Bank/Fort Worth, N.A., Trustee
in connection with existing $10,000,000 Industrial Development Authority
of Halifax County, Virginia, Industrial Revenue Bonds (X'Xxxxxxxx
Industries-Virginia, Inc. Project) Series 1988 (the "Virginia Industrial
Revenue Bonds"). The original IRB Letter of Credit may be renewed one
or more times after October 1, 1998, upon the application of any of
Industries, Holdings, and X'Xxxxxxxx - Virginia if in each case such
renewal is approved by Lenders in their discretion. Each such renewal
IRB Letter of Credit shall be in substantially the same form as the
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original IRB Letter of Credit, but shall have an expiration date one
year after the expiration date of the prior IRB Letter of Credit that is
being renewed. Industries, Holdings, and X'Xxxxxxxx - Virginia
acknowledge that (i) Agent and Lenders do not have the obligation to
renew the IRB Letter of Credit and Industries, Holdings, and X'Xxxxxxxx
- Virginia fully bear the risk that it may not be renewed, (ii) October
1, 1998, is the first call date of the Virginia Industrial Revenue Bonds
with respect to which the IRB Letter of Credit has been issued, and
(iii) if the IRB Letter of Credit is not renewed, X'Xxxxxxxx - Virginia
may be required to call the Virginia Industrial Revenue Bonds on such
date if it has not provided Tandy or the bond trustee with an acceptable
replacement for the IRB Letter of Credit.
2.2.3. LENDERS' PARTICIPATIONS. Each of the Lenders shall be
deemed, as of the time of the issuance of each Letter of Credit, to have
purchased participations therein in proportion to their Prorata Shares.
If there is a draw on any Letter of Credit, each Lender shall make
available to Agent its Prorata Share of such draw as provided in Section
6.1.3 as if such draw were an Advance Request, and the failure of a
Lender to do so shall have the same consequence as a failure to make
funds available to Agent for an Advance Request as provided in Sections
6.1.3 through 6.1.5.
2.2.4. REPLACEMENT OF IRB LETTER OF CREDIT. Industries,
Holdings, and X'Xxxxxxxx - Virginia may replace the IRB Letter of Credit
at any time with either cash collateral or other collateral or security
acceptable to Tandy whose amount does not exceed, or a letter of credit
whose face amount does not exceed, the then undrawn amount of the IRB
Letter of Credit, provided that (i) they give five Business Days' prior
written notice to Agent of their intention to do so, (ii) they provide
to Lenders such documents, which may include but are not necessarily
limited to documents executed by Tandy, Industries, Holdings, X'Xxxxxxxx
- Virginia, and, if appropriate, the successor of Texas American
Bank/Fort Worth, N.A., as Trustee, with respect to the Virginia
Industrial Revenue Bonds, which evidence to the satisfaction of Lenders
that the IRB Letter of Credit will not be drawn upon as a consequence of
and will be irrevocably terminated upon such replacement. If an Event
of Default occurs that has not been waived by Lenders, Industries,
Holdings and X'Xxxxxxxx - Virginia shall use all reasonable efforts to
obtain a letter of credit from another financial institution to replace
the IRB Letter of Credit.
3. INTEREST.
3.1. RATES. Each Advance, and any portion of the Aggregate Revolving
Loan that is a minimum of $1,000,000 and an even multiple of $1,000,000, shall
constitute a "Tranche" and shall bear interest at a rate per annum that is
either the Alternate Base Rate or the Adjusted LIBO Rate, as designated by
Borrower as provided herein. Each reimbursement to Agent for a draw on a Letter
of Credit shall include interest at the Alternate Base Rate on the amount of the
draw from the time the draw is funded by Agent.
3.2. DEFINITION OF ALTERNATE BASE RATE. The "Alternate Base Rate"
shall be the "Corporate Base Rate" of Agent as in effect from time to time. The
Corporate Base Rate is a reference rate and does not necessarily represent the
lowest or best rate charged to any customer of Agent or any Lender.
3.3. DEFINITION OF ADJUSTED LIBO RATE. The "Adjusted LIBO Rate" shall
mean, with respect to a LIBOR Tranche for its Interest Period, a rate equal to
(a) the LIBO Rate for such Interest Period plus (b) the applicable LIBO
Increment from the following table:
If the ratio of Holdings' consolidated Then the "LIBO
Funded Debt to EBITDA (as defined in Increment" shall be:
Section 15.1) is:
1.8 to 1.0 or less 0.35%
Less than or equal to 2.0 to 1.0 and
more than 1.8 to 1.0 0.60%
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Less than or equal to 2.5 to 1.0 and more than
2.0 to 1.0 1.05%
Greater than 2.5 to 1.0 1.40%
3.3.1. "LIBO Rate" shall mean, with respect to any LIBOR Tranche
for any Interest Period, an interest rate per annum equal to the
quotient (rounded to the nearest 0.001%) of
(i) the rate at which Dollar deposits in immediately available funds and
for a maturity equal to the applicable Interest Period are offered or
available in the London Interbank Market for Eurodollars as of 11:00
a.m. (St. Louis time) two Business Days before the applicable Advance
Date, as reported on Telerate Screen LIBO page 3750, or, if a rate is
not obtainable from Telerate on such date, the rate published in the
Wall Street Journal on such date,
divided by
(ii) a number equal to one minus the decimal equivalent of the aggregate
of the actual rates during the applicable Interest Period of all reserve
requirements (including, without limitation, marginal, emergency,
supplemental and special reserves), established by the FRB or any other
Governmental Authority to which any Lender is actually subject, in
respect of "Eurocurrency liabilities" as referred to in Regulation D,
including but not limited to those imposed under Regulation D. (The
amount of every LIBOR Tranche shall be deemed to constitute a
Eurocurrency liability and as such shall be deemed to be subject to such
reserve requirements.) The LIBO Rate shall be adjusted automatically on
and as of the effective date of any change in any such reserve
requirements. Lenders warrant that no such reserve requirement is in
effect on the Effective Date and agree to promptly notify Holdings of
the imposition of, or any change in, any such reserve requirement.
3.4. INTEREST PERIODS FOR LIBOR TRANCHES. For each Tranche that
Borrower designates to be a LIBOR Tranche, Borrower shall elect an interest
period (each, an "Interest Period") to be applicable to such Tranche. The
Interest Period for a LIBOR Tranche shall be either a one month, two month,
three month, or six month period; provided that:
(i) every such Interest Period for a Tranche shall commence on the date
of the Advance;
(ii) if any Interest Period would otherwise expire on a day of a
calendar month which is not a Business Day, then such Interest Period
shall expire on the next succeeding Business Day in that calendar month;
provided, however, that if the next succeeding Business Day would be in
the following calendar month, it shall expire on the first preceding
Business Day;
(iii) no Interest Period for a Tranche shall extend beyond the Ultimate
Revolving Maturity Date; and
(iv) no more than twelve LIBOR Tranches with different Interest Periods
may be outstanding at any one time.
3.5. CONVERSION OF TRANCHES. Provided that no Event of Default has
o ccurred that has not been waived in writing by Lenders, Borrower may at any
time (i) convert a Tranche of one type into a Tranche of another type, or (ii)
at the end of any Interest Period for a LIBOR Tranche, continue such LIBOR
Tranche for an additional Interest Period; provided, however, that if a LIBOR
Tranche is converted or continued on a day that is not the last day of its
Interest Period, Borrower shall pay to Agent, for the account of Lenders, an
amount calculated in accordance with Section 7.2. To cause a conversion or
continuation, Borrower shall give Agent, prior to 11:00 a.m., St. Louis time,
two (2) Business Days prior to the date the conversion or continuation is to be
effective, a written request (which may be mailed, personally delivered or
telecopied as provided in Section 19.2) (a "Notice of Conversion/Continuation")
(i) identifying the Tranche to be converted or continued, (ii) specifying
whether a conversion or continuation is
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requested, (iii) in the case of a conversion, specifying whether the Tranche is
to be converted into an Alternate Base Rate Tranche or a LIBOR Tranche, and (iv)
in the case of conversion to or continuation of a LIBOR Tranche, specifying the
Interest Period therefor. If a Notice of Conversion/Continuation is not made by
11:00 a.m. St. Louis time on the last day of the Interest Period for a LIBOR
Tranche, then Borrower shall be deemed to have timely given a Notice of
Conversion/Continuation to Agent requesting to convert the Tranche to an
Alternate Base Rate Tranche.
3.6. RATE AFTER MATURITY. Interest shall be paid on the Revolving
Loans after their Maturity, and in the discretion of Lenders after the
occurrence of an Event of Default, on the Revolving Loans and on other Loan
Obligations, at a per annum rate equal to the Alternate Base Rate plus 2%. For
purposes of this Section, the Maturity of any obligation to reimburse Agent for
the account of Lenders for a draw on a Letter of Credit shall be deemed to occur
on the fifth day after Agent makes demand for reimbursement as provided in
Section 5.3.
3.7. TIME OF ACCRUAL. Interest shall accrue on all principal amounts
outstanding from and including the date when first outstanding to but excluding
the date when no longer outstanding. Amounts shall be deemed outstanding until
payments are applied thereto as provided herein.
3.8. COMPUTATION. Interest for Loans based on the Corporate Base Rate
shall be computed for the actual days elapsed over a year of 365 or 366 days, as
applicable. Interest rates that are based on the Corporate Base Rate shall
change simultaneously with any change in the Corporate Base Rate and such rates
shall be effective for the entire day on which the Corporate Base Rate change
becomes effective. Interest for Loans based on the LIBO Rate shall be computed
for the actual days elapsed over a year deemed to consist of 360 days.
3.9. USURY. Notwithstanding any provisions to the contrary in Section
3 or elsewhere in any of the Loan Documents, Borrower shall not be obligated to
pay interest at a rate which exceeds the maximum rate permitted by Law. If, but
for this Section 3.9, Borrower would be deemed obligated to pay interest at a
rate which exceeds the maximum rate permitted by Law, or if any of the Loan
Obligations is paid or becomes payable before its originally scheduled Maturity
and as a result Borrower has paid or would be obligated to pay interest at such
an excessive rate, then (i) Borrower shall not be obligated to pay interest to
the extent it exceeds the interest that would be payable at the maximum rate
permitted by Law; (ii) any such excess interest that has been paid by Borrower
shall be refunded; and (iii) the effective rate of interest shall be deemed
automatically reduced to the maximum rate permitted by Law.
4. FEES.
4.1. FACILITY FEE. Borrower shall pay to Agent for the account of
Lenders in accordance with their Prorata Shares a non-refundable "Facility Fee"
calculated by applying the daily equivalent of an annual rate of 0.15% to the
Aggregate Revolving Commitment as of each day. The Facility Fee shall be
payable quarterly in arrears on the first day of each calendar quarter until all
of the Loan Obligations have been fully paid and the Revolving Commitments have
been canceled.
4.2. STANDBY LC FEE. Borrower shall pay to Agent for the account of
Lenders in accordance with their Prorata Shares a "Standby LC Fee" for each
standby Letter of Credit issued by Agent (exclusive of the IRB Letter of Credit)
that shall be calculated by applying the quarterly equivalent of the then
applicable LIBO Increment to the aggregate undrawn amount of such Letter of
Credit. The Standby LC Fee for each such Letter of Credit shall be payable in
advance on its issuance date and on the first day of each calendar quarter
beginning thereafter while it is outstanding.
4.3. FEES FOR COMMERCIAL LC'S. Borrower shall pay to Agent for the
account of Lenders in accordance with their Prorata Shares a "Commercial LC Fee"
for each documentary (commercial) Letter of Credit issued by Agent that is equal
to 1/4% of the original face amount of such Letter of Credit. The Commercial LC
Fee for each such Letter of Credit shall be payable in advance on its issuance
date. In addition, Borrower shall pay on demand (i) to Agent for its sole
account, the sum of $50 for each negotiation of such a Letter of Credit, and
(ii) to Agent for
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its sole account, Agent's other customary fees (excluding fees for negotiation
of Letters of Credit set forth in clause (i), above) charged in connection with
its issuance and administration of such Letters of Credit.
4.4. IRB LC FEE. Borrower shall pay to Agent for the account of
Lenders in accordance with their Prorata Shares an "IRB LC Fee" for the IRB
Letter of Credit issued by Agent that shall be calculated by applying the
quarterly equivalent of 1% per annum to the aggregate undrawn amount thereof;
provided, however, that for each day on which an Event of Default exists and is
continuing, the rate at which the IRB LC Fee shall accrue shall be the quarterly
equivalent of 3% per annum of the aggregate undrawn amount of the IRB Letter of
Credit. The IRB LC Fee shall be payable in advance on the Effective Date and on
the first day of each calendar quarter beginning thereafter while the IRB Letter
of Credit is outstanding.
4.5. CALCULATION OF FEES. All of the foregoing fees that are based on
an annual percentage shall be calculated on the basis of a year of 365 or 366
days, as applicable and for the actual number of days elapsed.
5. PAYMENTS.
5.1. SCHEDULED PAYMENTS ON REVOLVING LOANS.
5.1.1. INTEREST. Borrower shall pay interest accrued on each
Tranche of the Alternate Base Rate Loans in arrears on the first day of
each calendar quarter, on the last day of the Interest Period for the
Tranche if it is a LIBOR Tranche, and on the Ultimate Revolving Maturity
Date. Borrower shall pay interest accrued on the Revolving Loans after
their Maturity on demand.
5.1.2. PRINCIPAL. Borrower shall repay the entire amount of the
Revolving Loans on the Ultimate Revolving Maturity Date.
5.2. PREPAYMENTS ON REVOLVING LOANS AND REDUCTION OF REVOLVING
COMMITMENT.
5.2.1. VOLUNTARY. Borrower may wholly prepay any LIBOR Tranche
or any Alternate Base Rate Tranche at any time and may make partial
prepayments on any LIBOR Tranche or any Alternate Base Rate Tranche from
time to time, without penalty or premium, to all Lenders in accordance
with their Prorata Shares, but only if (i) Borrower gives Agent written
notice (which may be mailed, personally delivered or telecopied as
provided in Section 19.2) of Borrower's intention to make such
prepayments at least one Business Day prior to tendering the
prepayments, (ii) the total amount of the prepayments of any LIBOR
Tranche or any Alternate Base Rate Tranche is a whole multiple of
$500,000, (iii) Borrower pays any accrued interest on the amount prepaid
at the time of such prepayment and (iv) in the case of a LIBOR Tranche,
Borrower pays an amount calculated in accordance with Section 7.2 at the
time of such prepayment.
5.2.2. REDUCTION OF COMMITMENT. Borrower may reduce the
Aggregate Revolving Commitment at any time and from time to time in a
minimum amount of $5,000,000 and whole multiples of $1,000,000
thereafter, but only if (i) Borrower gives Agent written notice of
Borrower's intention to make such reduction at least five (5) Business
Days prior to the effective date of the reduction, and (ii) Borrower
makes on the effective date of the reduction any payment on the
Aggregate Revolving Loan required under Section 5.2.3 as a consequence
of the reduction. Any such reduction of the Aggregate Revolving
Commitment shall be permanent. Each reduction of the Aggregate
Revolving Commitment shall ratably reduce each Lender's Prorata Share of
the Aggregate Revolving Commitment.
5.2.3. MANDATORY PREPAYMENT FOR OVER ADVANCES. If at any time
the Aggregate Revolving Loan exceeds the Aggregate Revolving Commitment
at such time, whether as the result of optional Advances by Lenders as
contemplated in Section 2.1.2 or otherwise, Borrower shall repay such
optional Advances in
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accordance with the terms thereof and shall, with respect to other
Advances, make on demand a payment to Agent for the account of Lenders
in the amount of the excess.
5.3. REIMBURSEMENT FOR DRAWS ON LETTERS OF CREDIT. Borrower shall on
demand by Agent reimburse to Agent for the account of Lenders the amount of any
draw made on a Letter of Credit as to which any Borrower was an applicant or
account party, together with interest as provided in Section 3.1. X'Xxxxxxxx -
Virginia shall on demand by Agent reimburse to Agent for the account of Lenders
the amount of any draw made on a Letter of Credit as to which X'Xxxxxxxx -
Virginia was the applicant and account party, together with interest as provided
in Sections 3.1 and 3.6.
5.4. MANNER OF PAYMENTS AND TIMING OF APPLICATION OF PAYMENTS.
5.4.1. PAYMENT REQUIREMENT. Unless expressly provided to the
contrary elsewhere herein, Borrower shall make each payment on the Loan
Obligations to Agent for the account of Lenders as required under the
Loan Documents in immediately available funds in Dollars at the
Applicable Lending Office before 12:00 noon St. Louis time on the date
when due, without deduction, set-off or counterclaim.
5.4.2. APPLICATION OF PAYMENTS. All payments received by Agent
in immediately available funds at or before 2:00 p.m., St. Louis time,
on a Business Day will be applied on the same day. Such payments
received on a day that is not a Business Day or after 2:00 p.m. on a
Business Day will be applied to the relevant Loan Obligation on the next
Business Day. Except as otherwise expressly provided in this Agreement,
and so long as no Event of Default exists, payments and prepayments of
principal shall be applied to the Loan Obligations in the order and
manner specified by Borrower.
5.4.3. RETURNED INSTRUMENTS. If a payment is made by check,
draft or other instrument and the check, draft or other instrument is
returned unpaid, the application of the payment to the Loan Obligation
will be reversed and will be treated as never having been made.
5.4.4. COMPELLED RETURN OF PAYMENTS OR PROCEEDS. If a Lender is
for any reason compelled to surrender any payment because such payment
or the application of such proceeds is for any reason invalidated,
declared fraudulent, set aside, or determined to be void or voidable as
a preference, an impermissible setoff, or a diversion of trust funds,
then this Agreement and the Loan Obligations to which such payment or
proceeds was applied or intended to be applied shall be revived as if
such application was never made; and Borrower shall be liable to pay to
such Lender, and shall indemnify such Lender for and hold such Lender
harmless from any loss with respect to, the amount of such payment or
proceeds surrendered. This Section shall be effective notwithstanding
any contrary action that such Lender may take in reliance upon its
receipt of any such payment or proceeds. Any such contrary action so
taken by such Lender shall be without prejudice to such Lender's rights
under this Agreement and shall be deemed to have been conditioned upon
the application of such payment or proceeds having become final and
irrevocable. The provisions of this Section shall survive termination
of the Commitments and the payment and satisfaction of all of the Loan
Obligations.
5.5. DUE DATES NOT ON BUSINESS DAYS. Except as specified in Section
3.4(ii), if any payment required hereunder becomes due on a date that is not a
Business Day, then such due date shall be deemed automatically extended to the
next Business Day.
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6. PROCEDURE FOR USE OF FACILITIES.
6.1. ADVANCES.
6.1.1. ADVANCE REQUESTS BY BORROWER. Borrower may request an
Advance by submitting an Advance Request to Agent. Only a written
request (which may be mailed, personally delivered or telecopied as
provided in Section 19.2) from a Borrowing Officer to Agent that
specifies the amount of the Advance to be made (which shall be an even
multiple of $1,000,000), the date the proceeds of the Advance are
requested to be made available to Borrower (which, in the case of a
request for an Advance that is to be a LIBOR Tranche, shall be not less
than two (2) Business Days after the Advance Request is furnished, and,
in the case of a request for an Advance that is to be an Alternate Base
Rate Advance may be on the same day as such Advance Request) (the
"Advance Date"), whether the Advance is to be a LIBOR Tranche or an
Alternate Base Rate Tranche, and the Interest Period to be applicable to
the Tranche if it is a LIBOR Tranche, shall be treated as a "Advance
Request". An Advance Request received by Agent on a day that is not a
Business Day or that is received by Agent after 2:00 p.m., St. Louis
time, on a Business Day shall be treated as having been received by
Agent at 9:00 a.m., St. Louis time, on the next Business Day. An
Advance Request shall become irrevocable at 2:00 p.m., St. Louis time,
on the Advance Date unless it is sooner funded by Lenders (and becomes
an Advance) or revoked by a Borrowing Officer. Neither Agent nor any
Lender shall incur any liability to Borrower for treating any such
request as an Advance Request or for treating a revocation thereof as
such if Agent believes in good faith that the Person making the request
or revocation is a Borrowing Officer. Neither Agent nor any Lender
shall incur any liability to Borrower for failing to treat any such
request as an Advance Request or for failing to treat a revocation
thereof as such if Agent believes in good faith that the Person making
the request or revocation is not a Borrowing Officer. Each Advance
Request by a Borrowing Officer shall constitute a certification by
Borrower that (i) no Default has occurred that is continuing and not
waived in writing by Agent and no Event of Default has occurred that is
not waived in writing by Agent and (ii) all conditions precedent
hereunder to the making of the requested Advance have been satisfied.
Provided that all conditions precedent herein to a requested Advance
have been satisfied, Agent will make the amount of such requested
Advance available to Borrower by 2:00 p.m. St. Louis time on the Advance
Date in immediately available funds in Dollars at the Applicable Lending
Office, and upon request by Borrower, Agent will use reasonable efforts
to make such Advance available as soon as possible, but in any event, no
later than 2:00 p.m. St. Louis time on the Advance Date.
6.1.2. LENDERS' RIGHT TO MAKE OTHER ADVANCES. With the prior
consent of Majority Lenders in each instance, Agent shall have the right
to make Advances at any time and from time to time to cause timely
payment of any of the Loan Obligations. Any such Advance shall be an
Alternate Base Rate Tranche. Agent will give notice to Borrower after
any such Advance is made.
6.1.3. AGENT'S NOTICE TO LENDERS; FUNDS DEPOSIT. Upon receipt of
an Advance Request or the making of an Advance under Section 6.1.2,
Agent shall promptly notify each Lender of the contents thereof and of
such Lender's Prorata Share of such Advance. Not later than 1:00 p.m.
(St. Louis time) on the Advance Date, each Lender shall make available
its Prorata Share of such Advance, in immediately available funds
consisting solely of Dollars, to Agent in accordance with such
remittance instructions as may be given by Agent to Lenders from time to
time.
6.1.4. ADVANCES RATABLE. All Advances shall be made by Lenders
as provided herein in accordance with their Prorata Shares. Except as
otherwise expressly provided herein, a Lender shall not be obligated to
make Advances in excess of its Revolving Commitment.
6.1.5. AGENT'S AVAILABILITY ASSUMPTION. Unless Agent has been
given written notice by a Lender prior to an Advance Date that such
Lender does not intend to make available to Agent such Lender's Prorata
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Share of the Advance which it will be obligated to make on the Advance
Date, Agent may assume that each Lender has made the required amount
available to Agent on the Advance Date and Agent may, in reliance upon
such assumption, make available to Borrower a corresponding amount. If
such corresponding amount is not in fact made available to Agent by such
Lender on the Advance Date, Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such Lender does
not pay such corresponding amount immediately upon Agent's demand
therefor, then Agent shall promptly notify Borrower and the other
Lenders and Borrower shall immediately pay such corresponding amount to
Agent. Agent shall also be entitled to recover, either from such
defaulting Lender or Borrower, interest on such corresponding amount for
each day from the date such corresponding amount was made available by
Agent to Borrower to the date such corresponding amount is recovered by
Agent, at a rate per annum equal to (i) if paid by such Lender, the cost
to Agent of funding such amount at the Federal Funds Rate, or (ii) if
paid by Borrower, the applicable rate for Advances determined from the
Advance Request to which such amount relates. Each Lender shall be
obligated only to fund its Prorata Share of an Advance subject to the
terms and conditions hereof, regardless of the failure of another Lender
to fund its Prorata Share thereof.
6.1.6. SUSPENSION OF OBLIGATION TO MAKE LIBOR TRANCHES. If (i)
on any date for determining the LIBO Rate for any Interest Period, by
reason of any changes arising after the Effective Date affecting the
London Interbank Market, or any Lender's position in such market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition herein of LIBO
Rate, or, in the sole discretion of Lenders, on any other reasonable
basis or (ii) the making of any Advance which is to be a LIBOR Tranche
or the continuance of any LIBOR Tranche by a Lender has become unlawful
by compliance by such Lender in good faith with any Law or any
pronouncement (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of a Governmental
Authority, then such Lender shall promptly give notice to Borrower of
such determination. Before giving such notice, such Lender shall
designate a different LIBOR lending office or take other reasonable
action if such designation or action will avoid the need for giving such
notice and will not be otherwise disadvantageous to any non-trivial
extent to such Lender (as determined in good faith by such Lender).
Until such Lender notifies Borrower that the circumstances giving rise
to the suspension described herein no longer exist, (a) the obligation
of such Lender to make Advances which are LIBOR Tranches shall be
suspended, (b) each outstanding LIBOR Tranche from such Lender shall be
automatically converted into an Alternate Base Rate Tranche on the
earlier of the last day of the Interest Period for such LIBOR Tranche or
the last date permitted by applicable law, and (c) all Advances from
such Lender shall be Alternate Base Rate Advances. Notwithstanding
anything to the contrary contained herein, if a LIBOR Tranche is
converted to an Alternate Base Rate Tranche pursuant to this Section
6.1.6, the per annum interest rate applicable thereto from and after the
effective date of such conversion shall be the Alternate Base Rate (but
otherwise calculated as provided in Section 3). If at any time it
appears, in the reasonable judgment of Lenders, that Lenders will be
unable to offer LIBO Rate loans to Borrower from such time through the
Ultimate Revolving Maturity Date, Lenders will enter into good faith
negotiations with Borrower in an attempt to replace the LIBO Rate loan
interest rate option with another interest rate option satisfactory to
Lenders and Borrower.
6.2. LETTERS OF CREDIT. Borrower may request the issuance or renewal
of a Letter of Credit by submitting a Letter of Credit Request to Boatmen's and
executing any reimbursement agreement required under Section 10.1. Only a
written request (which may be mailed, personally delivered or telecopied as
provided in Section 19.2) from a Borrowing Officer to Boatmen's that specifies
the amount and beneficiary of the requested Letter of Credit, and its
identifying number in the case of a renewal, and other information necessary for
its issuance or renewal shall be treated as a "Letter of Credit Request". Each
Letter of Credit Request by a Borrowing Officer shall constitute a certification
by Borrower that (i) no Default has occurred that is continuing and not waived
in writing by Lenders and no Event of Default has occurred that is not waived in
writing by Lenders and (ii) all conditions precedent hereunder to the issuance
of the requested Letter of Credit have been satisfied.
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7. YIELD PROTECTION.
7.1. COMPENSATION FOR INCREASE IN LIBOR TRANCHE COSTS. If after the
Effective Date there is any change in any Law or in any rule, order, or
guideline (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful, and including but not limited to any
imposition or increase of reserve requirements) of any Governmental Authority
and as a result thereof or as a result of compliance therewith by a Lender:
(i) such Lender is subject to any tax, duty or other charge with
respect to its LIBOR Tranches or its obligation to make Advances
that are LIBOR Tranches, or the basis of taxation of payments to
such Lender of the principal of or interest on its LIBOR
Tranches or its obligation to make the same change (except for
changes in the rate of tax on the overall net income of such
Lender imposed by the United States or other jurisdiction to
which such Lender is subject); or
(ii) any reserve (including, without limitation, any imposed by the
FRB), special deposit, compulsory loan, assessment, or similar
requirement against assets of, deposits with or for the account
of, or credit extended by, such Lender is imposed or deemed
applicable or any other condition affecting its LIBOR Tranches
or its obligation to make them is imposed on such Lender or the
London Interbank Market;
and as a result thereof there is any increase in the cost to such Lender of
agreeing to make or making an Advance that is a LIBOR Tranche or maintaining its
LIBOR Tranches (except to the extent already included in the determination of
the applicable LIBO Rate), or there is a reduction in the amount received or
receivable by such Lender, then Borrower shall from time to time, upon written
notice from and demand by such Lender (with a copy of such notice and demand to
Agent), pay to such Lender, within five Business Days after the date specified
in such notice and demand, additional amounts sufficient to compensate such
Lender in the amount of such increased cost. Before giving such notice, such
Lender shall designate a different LIBOR lending office or take other reasonable
action if such designation or action will avoid the need for giving such notice
and will not be otherwise disadvantageous to any non-trivial extent to such
Lender (as determined in good faith by such Lender). If such Lender claims
compensation under this Section, such Lender shall furnish to Borrower a
certificate providing in reasonable detail the calculation of such additional
costs and stating the additional amount or amounts to be paid to it hereunder.
Borrower shall have the burden of proving that any such certificate is not
correct.
7.2. FUNDING LOSSES. Borrower shall pay to each Lender upon its demand
an amount sufficient to compensate such Lender for all loss and expense suffered
by such Lender, including but not limited to loss of profit and the cost of
acquiring funds to make or carry a LIBOR Tranche, (i) if for any reason a
requested Advance is not taken by Borrower on the date specified therefor in an
Advance Request (unless such Advance Request has been withdrawn prior to
becoming irrevocable) or (ii) if any prepayment or repayment of a LIBOR Tranche
or conversion of a LIBOR Tranche to a Tranche of another type is made by
Borrower other than pursuant to Section 6.1.6 on a date which is not the last
day of the Interest Period therefor. Borrower shall be obligated to pay to such
Lender in any such event an amount equal to (x) the greater of zero or
[(B-C) x D]/360
wherein
"B" is the decimal equivalent of the LIBO Rate that is (or would be in
the case of Borrower's failure to borrow after giving an Advance
Request) payable by Borrower on such Advance;
"C" is the decimal equivalent of the LIBO Rate that would apply to a
hypothetical Advance in the Affected Principal Amount whose Advance Date
were on the last Business Day on or before the first day of the
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Remaining Interest Period and whose Interest Period were approximately
equal, as determined by Lender, to the Remaining Interest Period (it
being agreed that in the event the Remaining Interest Period is not a
30, 60, 90 or 180 day period, Agent shall determine the applicable LIBO
Rate in its sole, good faith discretion; and
"D" is the number of days from the first day of the Remaining Interest
Period to the last day of the Remaining Interest Period.
"Affected Principal Amount" shall mean, as applicable, (i) the principal amount
of an Advance that Borrower fails to take after having given an Advance Request
(unless such Advance Request has been withdrawn prior to becoming irrevocable)
or (ii) the amount of any prepayment or repayment on a LIBOR Tranche that
occurs, or the entire principal amount of a LIBOR Tranche that converts to an
Advance of another type on a date which is not the last day of the Interest
Period therefor.
"Remaining Interest Period" shall mean, as applicable, (i) the entire Interest
Period that would have been applicable to an Advance that Borrower fails to take
after having given an Advance Request (unless such Advance Request has been
withdrawn prior to becoming irrevocable) or (ii) if a prepayment or repayment on
a LIBOR Tranche occurs, or a LIBOR Tranche converts to an Advance of another
type, whether or not required hereby, prior to the last day of the Interest
Period therefor, the period from and including the date thereof to but excluding
the last day of such Interest Period.
If a Lender claims compensation under this Section, such Lender shall furnish a
certificate to Borrower (with a copy to Agent if it is not the Lender involved)
that provides a detailed calculation of the amount to be paid to such Lender and
certifies that such amount is correct. Borrower shall have the burden of
proving that any such certificate is not correct.
8. GUARANTY. X'Xxxxxxxx - Virginia shall execute and deliver to Agent for
the benefit of Lenders in accordance with their Prorata Shares an unconditional
guaranty of the Loan Obligations in substantially the form attached hereto as
Exhibit 8 (as the same may be amended, restated or replaced from time to time,
the "Guaranty").
9. CONDITIONS TO ADVANCES.
9.1. CONDITIONS TO INITIAL ADVANCES. As conditions precedent to
Lenders' obligation to make the initial Advances:
9.1.1. NO DEFAULT. No Default shall have occurred and be
continuing that is not waived in writing by Lenders, no Event of Default
shall have occurred that is not waived in writing by Lenders, and
neither will occur as a result of such Advance being requested or made
or the application of the proceeds thereof.
9.1.2. REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in the Loan Documents shall be true and correct in
all material respects.
9.1.3. MATERIAL ADVERSE CHANGE. Since the date of the most
recent Financial Statements delivered to Lenders, there shall not have
been any change which would have a Material Adverse Effect.
9.1.4. PENDING MATERIAL PROCEEDINGS. There shall be no pending
Material Proceedings, except as set forth on Exhibit 11.
9.2. CONDITIONS TO SUBSEQUENT ADVANCES. As conditions precedent to
Lenders' obligation to make any subsequent Advances:
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9.2.1. NO DEFAULT. No Default shall have occurred and be
continuing that is not waived in writing by Lenders, no Event of Default
shall have occurred that is not waived in writing by Lenders, and
neither will occur as a result of such Advance being requested or made
or the application of the proceeds thereof.
9.2.2. MATERIAL ADVERSE CHANGE. Since the date of the most
recent Financial Statements delivered to Lenders, there shall not have
been any change which would have a Material Adverse Effect which
Borrower or Lenders reasonably believe will ultimately result in a
Default under this Agreement.
10. CONDITIONS TO ISSUANCE OF LETTERS OF CREDIT. As conditions precedent to
the issuance of any Letter of Credit:
10.1. REIMBURSEMENT AGREEMENT. Each applicant and account party
therefor shall have executed and delivered to Agent a reimbursement agreement in
the appropriate form thereof previously negotiated by Borrower and Agent or in
such other form satisfactory to Agent and Borrower under which each applicant
and account party undertakes to reimburse to Agent on demand for the account of
Lenders the amount of each draw on such Letter of Credit, together with interest
from the date of the draw as provided herein.
10.2. OTHER CONDITIONS. All of the conditions in Section 9.2 shall
have been satisfied and shall remain satisfied as of the issuance date of any
Letter of Credit.
11. REPRESENTATIONS AND WARRANTIES.
Except as otherwise described in the disclosure schedule that is
attached hereto as Exhibit 11 (the "Disclosure Schedule"), Borrower represents
and warrants to Lenders, and by its execution hereof, X'Xxxxxxxx - Virginia also
represents and warrants to Lenders as follows:
11.1. ORGANIZATION AND EXISTENCE. Each Covered Person is duly
incorporated and existing in good standing under the laws of the jurisdiction of
its organization, is duly qualified to do business and is in good standing in
every state where the nature or extent of its business or properties require it
to be qualified to do business, except where the failure to so qualify will not
have a Material Adverse Effect. Each Covered Person has the corporate power and
authority to own its properties and carry on its business as now being
conducted.
11.2. AUTHORIZATION. Each Covered Person is duly authorized to execute
and perform every Loan Document to which such Covered Person is a party, and
Borrower is duly authorized to borrow hereunder, and this Agreement and the
other Loan Documents have been duly authorized by all requisite corporate action
of each Covered Person. No consent, approval or authorization of, or
declaration or filing with, any Governmental Authority, and no consent of any
other Person, is required in connection with Borrower's execution, delivery or
performance of this Agreement and the other Loan Documents, except for those
already duly obtained.
11.3. DUE EXECUTION. Every Loan Document to which a Covered Person is
a party has been executed on behalf of such Covered Person by a Person duly
authorized to do so.
11.4. ENFORCEABILITY OF OBLIGATIONS. Each of the Loan Documents to
which a Covered Person is a party constitutes the legal, valid and binding
obligation of such Covered Person, enforceable against such Covered Person in
accordance with its terms, except to the extent that the enforceability thereof
against such Covered Person may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
or by equitable principles of general application.
11.5. BURDENSOME OBLIGATIONS. To Borrower's knowledge after due
inquiry, no Covered Person is a party to or bound by or is subject to any
provision in any Contract for borrowed money or the Charter Documents of such
Covered Person which would, if performed by such Covered Person, result in a
Default or Event of Default either
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immediately or upon the elapsing of time; and to Borrower's knowledge, no
Covered Person is a party to or bound by any other agreement which would, if
performed by such Covered Person, result in a Default or Event of Default either
immediately or upon the elapsing of time.
11.6. LEGAL RESTRAINTS. The execution of any Loan Document by a
Covered Person will not violate or constitute a default under the Charter
Documents of such Covered Person, any Material Agreement of such Covered Person,
or any Material Law, and will not, except as expressly contemplated or permitted
in this Agreement, result in any Security Interest being imposed on any of such
Covered Person's property. The performance by any Covered Person of its
obligations under any Loan Document to which it is a party will not violate or
constitute a default under the Charter Documents of such Covered Person, any
Material Agreement of such Covered Person, or any Material Law, and will not,
except as expressly contemplated or permitted in this Agreement, result in any
Security Interest being imposed on any of such Covered Person's property.
11.7. LABOR DISPUTES. There is no collective bargaining agreement or
other labor contract covering employees of a Covered Person. To Borrower's
knowledge, no union or other labor organization is seeking to organize, or to be
recognized as, a collective bargaining unit of employees of a Covered Person for
any similar purpose.
11.8. NO MATERIAL PROCEEDINGS. There are no Material Proceedings
pending or, to the best knowledge of Borrower, threatened.
11.9. COMPLIANCE WITH LAWS. To Borrower's knowledge, each Covered
Person is in substantial compliance with all Material Laws. Without limiting
the generality of the foregoing:
11.9.1. COMPLIANCE. To Borrower's knowledge, the operations of
every Covered Person comply in all material respects with all material
Environmental Laws and Employment Laws.
11.9.2. PROCEEDINGS. None of the operations of any Covered
Person is the subject of any judicial or administrative complaint, order
or proceeding alleging the violation of any applicable Environmental Law
or Employment Law.
11.9.3. INVESTIGATIONS. None of the operations of any Covered
Person is the subject of investigation by any Governmental Authority
regarding the improper transportation, storage, disposal, generation or
release into the environment of any Hazardous Material, the results of
which are reasonably expected to have a Material Adverse Effect.
11.9.4. HAZARDOUS MATERIAL. No Covered Person has caused or
allowed (i) any Hazardous Material to be present at any time on, in,
under or above the real property owned or operated by Borrower or any
Covered Person and (ii) the real property owned or operated by Borrower
or any Covered Person to be used at any time to manufacture, store, or
dispose of any Hazardous Material, except in a manner that is in
compliance in all material respects with all applicable Environmental
Laws and to an extent that will not have a Material Adverse Effect.
11.10. OTHER NAMES. No Covered Person has used any name other than the
full name which identifies such Covered Person in this Agreement.
11.11. FINANCIAL STATEMENTS. The latest Financial Statements provided
by Borrower to Lenders are complete and correct in all material respects, have
been prepared in accordance with GAAP, and fairly reflect, in all material
respects, the financial condition, results of operations and cash flows of the
Persons covered thereby as of the dates and for the periods stated therein.
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11.12. NO CHANGE IN CONDITION. Since the date of the latest Financial
Statements provided by Borrower to Lenders, no event has occurred which would
have a Material Adverse Effect which Borrower reasonably believes will
ultimately result in a Default under this Agreement.
11.13. NO DEFAULTS. To Borrower's knowledge, no Covered Person has
breached or violated or has defaulted under any Contract for borrowed money in
excess of $2,500,000 to which such Covered Person is a party (other than the
Loan Documents), which default has continued unwaived beyond any applicable
grace period provided therein and will have a Material Adverse Effect. To
Borrower's knowledge, no Covered Person has breached or violated or has
defaulted under any other agreement to which such Covered Person is a party
(other than the Loan Documents), which default has continued unwaived beyond any
applicable grace period provided therein and will have a Material Adverse Effect
which Borrower reasonably believes will ultimately result in a Default under
this Agreement.
11.14. INVESTMENTS. No Covered Person has any Investments in other
Persons except existing Permitted Investments.
11.15. INDEBTEDNESS. No Covered Person has any Indebtedness except
existing Permitted Indebtedness.
11.16. INDIRECT OBLIGATIONS. No Covered Person has any Indirect
Obligations except existing Permitted Indirect Obligations.
11.17. OPERATING LEASES. No Covered Person has an interest as lessee
under any Operating Leases other than leases whose premature termination
(without securing an adequate replacement) would not have a Material Adverse
Effect.
11.18. TAX LIABILITIES; GOVERNMENTAL CHARGES. Except where the failure
to do so would not have a Material Adverse Effect, each Covered Person has filed
or caused to be filed all tax reports and returns required to be filed by it
with any Governmental Authority, except where extensions have been properly
obtained, and has paid or made adequate provision for payment of all taxes,
assessments, fees and other charges levied upon it or upon its income or
properties by any Governmental Authority which are due and payable, including
interest and penalties, except such taxes, assessments, fees and other charges,
if any, as are being diligently contested in good faith by appropriate
proceedings and as to which such Covered Person has established adequate
reserves in conformity with GAAP on the books of such Covered Person. No
Security Interests for any such taxes, assessments, fees or other charges have
been filed and no claims are being asserted with respect to any such taxes,
assessments, fees or other charges which, if adversely determined, would have a
Material Adverse Effect. There are no material unresolved issues concerning any
tax liability of a Covered Person which, if adversely determined, would have a
Material Adverse Effect.
11.19. PENSION BENEFIT PLANS. Except with respect to events or
occurrences which would not have a Material Adverse Effect, all Pension Benefit
Plans maintained by each Covered Person or an ERISA Affiliate qualify under
Section 401 of the Code and are in compliance with the provisions of ERISA, and
11.19.1. PROHIBITED TRANSACTIONS. None of such Pension Benefit
Plans has participated in, engaged in or been a party to any non-exempt
prohibited transaction as defined in ERISA or the Code, and no officer,
director or employee of a Covered Person or of an ERISA Affiliate has
committed a breach of any of the responsibilities or obligations imposed
upon fiduciaries by Title I of ERISA.
11.19.2. CLAIMS. There are no claims, pending or threatened,
involving any such Pension Benefit Plan by a current or former employee
(or beneficiary thereof) of such Covered Person or ERISA Affiliate, nor
is there any reasonable basis to anticipate any claims involving any
such Pension Benefit Plan which would likely be successfully maintained
against such Covered Person or ERISA Affiliate.
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11.19.3. REPORTING AND DISCLOSURE REQUIREMENTS. There are no
violations of any reporting or disclosure requirements with respect to
any such Pension Benefit Plan and none of such Pension Benefit Plans has
violated any applicable Law, including but not limited to ERISA and the
Code.
11.19.4. ACCUMULATED FUNDING DEFICIENCY. No such Pension
Benefit Plan has (i) incurred an accumulated funding deficiency (within
the meaning of Section 412(a) of the Code), whether or not waived; (ii)
been a Pension Benefit Plan with respect to which a Reportable Event (to
the extent that the reporting of such events to the PBGC within thirty
days of the occurrence has not been waived) has occurred and is
continuing; or (iii) been a Pension Benefit Plan with respect to which
there exist conditions or events which have occurred that present a
significant risk of termination of such Pension Benefit Plan by the
PBGC.
11.19.5. MULTI-EMPLOYER PLAN. No Covered Person or ERISA
Affiliate has received notice that any Multi-employer Plan to which such
Covered Person or ERISA Affiliate contributes is in reorganization or
has been terminated within the meaning of Title IV of ERISA, and no
Multi-employer Plan to which such Covered Person or ERISA Affiliate
contributes is reasonably expected to be in reorganization or to be
terminated within the meaning of Title IV of ERISA.
11.20. WELFARE BENEFIT PLANS. No Covered Person or ERISA Affiliate
maintains a Welfare Benefit Plan that has a liability which, if enforced or
collected, would have a Material Adverse Effect. Each Covered Person and ERISA
Affiliate has complied in all material respects with the applicable requirements
of Section 4980B of the Code pertaining to continuation coverage as mandated by
COBRA.
11.21. RETIREE BENEFITS. No Covered Person or ERISA Affiliate has an
obligation to provide any Person with any medical, life insurance, or similar
benefit following such Person's retirement or termination of employment (or to
such Person's beneficiary subsequent to such Person's death) other than (i) such
benefits provided to Persons at such Person's sole expense and (ii) obligations
under COBRA.
11.22. STATE OF PROPERTY. Each Covered Person has good and marketable
or merchantable title to all real and personal property purported to be owned by
it or reflected in the latest Financial Statements provided to Lenders by
Borrower except for any defects in title which would not have a Material Adverse
Effect and except for personal property sold in the ordinary course of business
after the date of the Initial Financial Statements. There are no Security
Interests on any of the property purported to be owned by any Covered Person
except existing Permitted Security Interests.
11.23. MARGIN STOCK. Borrower is not engaged and will not engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U), and not more than $5,000,000 (plus any amounts used to
reacquire common stock of Holdings) of the proceeds of the Aggregate Revolving
Commitment will be used to purchase or carry any such margin stock (to be used
solely in connection with the acquisition or acquisitions of other entities) or
to extend credit to others for the purpose of purchasing or carrying any such
margin stock (to be used solely in connection with the acquisition or
acquisitions of other entities) or for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation U or Regulation G.
11.24. SECURITIES MATTERS. Except as permitted by Section 14.1.5, no
proceeds of any Advance will be used to acquire any security in any transaction
which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as
amended.
11.25. INVESTMENT COMPANY ACT, ETC. Borrower is not an investment
company registered or required to be registered under the Investment Company Act
of 1940, as amended, or a company controlled (within the meaning of such
Investment Company Act) by such an investment company or an affiliated person
of, or promoter or principal underwriter for, an investment company, as such
terms are defined in the Investment Company Act of 1940, as
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amended. Borrower is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or any
other similar Law limiting or regulating its ability to incur Indebtedness for
money borrowed.
11.26. NO MATERIAL MISSTATEMENTS OR OMISSIONS. To Borrower's
knowledge, neither the Loan Documents, any of the Financial Statements nor any
statement, list, certificate or other information furnished or to be furnished
by Borrower to Lenders in connection with the Loan Documents or any of the
transactions contemplated thereby contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements therein
not misleading. Borrower has disclosed to Lenders everything regarding the
business, operations, property, financial condition, or business prospects of
itself and every Covered Person that would have a Material Adverse Effect which
Borrower reasonably believes will ultimately result in a Default under this
Agreement.
11.27. FILINGS. All registration statements, reports, proxy statements
and other documents, if any, required to be filed by Borrower with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, have been filed,
and such filings are complete and accurate in all material respects and contain
no untrue statements of material fact or omit to state any material facts
required to be stated therein or necessary, in light of the circumstances in
which they were made, in order to make the statements therein not misleading.
11.28. BROKER'S FEES. Borrower has not engaged a broker or finder in
connection with this Agreement.
12. SURVIVAL OF REPRESENTATIONS. All representations and warranties in
Section 11, and all representations and warranties in any certificate delivered
by Borrower pursuant hereto, shall survive execution of each of the Loan
Documents and the making of every Advance, and may be relied upon by Lenders as
being true and correct when made until all of the Loan Obligations are fully and
irrevocably paid as contemplated in Section 5.4.4.
13. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that, so long as any of the Commitments
remains in effect or any of the Loan Obligations are owing to a Lender by
Borrower, Borrower shall do, or cause to be done, the following:
13.1. USE OF PROCEEDS. Advances shall be used solely for working
capital, plant expansion and other expenditures that are not prohibited herein
and as the source for payment of Borrower's reimbursement obligations with
respect to draws on Letters of Credit.
13.2. CORPORATE EXISTENCE. Each Covered Person shall maintain its
existence in good standing and its right to transact business in those states in
which it is now or hereafter doing business. Each Covered Person shall obtain
and maintain all Material Licenses for such Covered Person. Notwithstanding
anything in this Section to the contrary, any Covered Person may merge,
consolidate, acquire the assets of, or an equity interest in, any other Covered
Person; provided that, in the event any Borrower is involved in any such
transaction, a Borrower is the surviving corporation.
13.3. MAINTENANCE OF PROPERTY AND LEASES. Each Covered Person shall
maintain in good condition and working order, ordinary wear and tear excepted,
and repair and replace as required, all buildings, equipment, machinery,
fixtures and other real and personal property whose useful economic life has not
elapsed and which is necessary for the ordinary conduct of the business of such
Covered Person. Each Covered Person shall maintain in good standing and free of
material defaults all of its leases of buildings, equipment, machinery, fixtures
and other real and personal property whose useful economic life has not elapsed
and which is necessary for the ordinary conduct of the business of such Covered
Person.
13.4. INSURANCE. Each Covered Person shall maintain workers'
compensation (or appropriate alternative provision for workers' compensation
claims under applicable state law), liability insurance, business interruption
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insurance, and property and casualty insurance on its assets, against such risks
and contingencies and in such types and amounts as are customary for other
Persons engaged in similar businesses. Borrower shall upon request of Agent at
any time furnish to Agent evidence satisfactory to Agent that such insurance
exists and that all premiums due therefor have been paid.
13.5. PAYMENT OF TAXES AND OTHER OBLIGATIONS. Except where the failure
to do so would not have a Material Adverse Effect, each Covered Person shall
promptly pay and discharge or cause to be paid and discharged, as and when due,
any and all income taxes, federal or otherwise, lawfully assessed and imposed
upon it, and any and all lawful taxes, rates, levies, and assessments whatsoever
upon its properties and every part thereof, or upon the income or profits
therefrom and all claims of materialmen, mechanics, carriers, warehousemen,
landlords and other like Persons for labor, materials, supplies, storage or
other items or services which if unpaid might be or become a material Security
Interest or charge upon any of its property; provided, however, that nothing
herein contained shall be construed as prohibiting a Covered Person from
diligently contesting in good faith by appropriate proceedings the validity of
any such taxes, rates, levies, or assessments, provided such Covered Person has
established adequate reserves therefor in conformity with GAAP on the books of
such Covered Person, and no Security Interest, other than a Permitted Security
Interest, results from such non-payment. Each Covered Person shall make all Tax
Benefit Payments when due under the Tax Sharing Agreement.
13.6. COMPLIANCE WITH LAWS. Each Covered Person shall comply with all
Material Laws. Without limiting the generality of the foregoing:
13.6.1. ENVIRONMENTAL LAWS. Each Covered Person shall comply
in all material respects and shall use commercially reasonable efforts
to ensure compliance by all tenants, subtenants and other occupants, if
any, with all material Environmental Laws.
13.6.2. PENSION BENEFIT PLANS. Except where the failure to do
so would not result in a Material Adverse Effect, each Covered Person
and each ERISA Affiliate shall at all times make prompt payments or
contributions to meet the minimum funding standards under ERISA and the
Code with respect to any Pension Benefit Plan maintained by such Covered
Person or ERISA Affiliate, and shall comply with all reporting and
disclosure requirements and all provisions of the Code and ERISA
applicable to any Pension Benefit Plan maintained by such Covered Person
or ERISA Affiliate.
13.6.3. EMPLOYMENT LAWS. Except where the failure to do so
would not result in a Material Adverse Effect, each Covered Person shall
comply with all requirements of all Employment Laws applicable to such
Covered Person.
13.7. DISCOVERY AND CLEAN-UP OF HAZARDOUS MATERIAL.
13.7.1. IN GENERAL. Upon any Covered Person receiving notice of
any violation of Environmental Laws or any similar notice described in
Section 13.9.4, or upon any Covered Person otherwise discovering a
release of Hazardous Material on any property owned by any Covered
Person which is in violation of, or which would result in liability
under, any Environmental Law, Borrower shall: (i) promptly take such
acts as may be required to prevent danger or harm to the property or any
person therein as a result of such Hazardous Material; (ii) at the
request of Agent, and at Borrower's sole cost and expense, obtain and
deliver to Agent promptly, but in no event later than 90 days after such
request, a then currently dated environmental assessment of the property
certified to Agent and any future holder of the Loan Obligations and
(iii) take all necessary steps to initiate and expeditiously complete
removal, remedial, response, corrective and other action to address any
such environmental problems, and keep Agent informed of such actions and
the results thereof.
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13.8. TERMINATION OF PENSION BENEFIT PLAN. A Covered Person or ERISA
Affiliate shall not terminate or amend any Pension Benefit Plan maintained by
such Covered Person or ERISA Affiliate if such termination or amendment would
result in any liability of such Covered Person or ERISA Affiliate under ERISA,
or any increase in current liability for the plan year for which such Covered
Person or ERISA Affiliate is required to provide security to such Pension
Benefit Plan under the Code, in excess of 5% of the Net Worth of such Covered
Person or ERISA Affiliate.
13.9. NOTICE TO AGENT OF MATERIAL EVENTS. Borrower shall, promptly
upon any Responsible Officer of Borrower obtaining knowledge or notice thereof,
give notice to Agent of any (i) breach of any of the covenants in Section 13 or
14; (ii) Default or Event of Default; (iii) the commencement of any Material
Proceeding; and (iv) any loss of or damage to any assets of a Covered Person or
institution of any proceeding for the condemnation or other taking of any of the
assets of a Covered Person, to the extent that such loss, damage or proceeding
is likely to have a Material Adverse Effect. In addition,
13.9.1. Borrower shall furnish to Agent from time to time all
information (other than attorney work product and information protected
by the attorney-client privilege) which Agent reasonably requests with
respect to the status of any Material Proceeding.
13.9.2. Borrower shall furnish to Agent from time to time all
information which Agent reasonably requests with respect to any Pension
Benefit Plan established by a Covered Person or ERISA Affiliate.
13.9.3. Borrower shall deliver notice to Agent of the
establishment by a Covered Person or an ERISA Affiliate of any Pension
Benefit Plan.
13.9.4. To the extent that a Material Adverse Effect is
reasonably likely to result, Borrower shall within five days inform
Agent of its receipt of, and deliver to Agent a copy of, any (a) notice
that any judicial complaint or order has been filed against any Covered
Person alleging violations of any Environmental Law or Employment Law or
requiring such Covered Person to take any action in connection with the
release of any Hazardous Material into the environment, (b) notice from
a federal, state, or local governmental agency or private party alleging
that a Covered Person may be liable or responsible for costs associated
with a response to or cleanup of a release of Hazardous Material into
the environment or any damages caused thereby, (c) notice that a Covered
Person is subject to federal, state or local investigation regarding the
improper transportation, storage, disposal, generation or release into
the environment of any Hazardous Material, or (d) notice that any
properties or assets of a Covered Person are subject to a Security
Interest in favor of any Governmental Authority for any liability under
any Environmental Law or damages arising from or costs incurred by such
Governmental Authority in response to a release of Hazardous Material
into the environment.
13.9.5. Borrower shall within 30 days after they occur deliver
to Agent notice of the following events: (i) the failure of any Covered
Person or ERISA Affiliate to make any required installment or any other
required payment to any Pension Benefit Plan in sufficient amount to
comply with ERISA and the Code on or before the due date for such
installment or payment; (ii) the occurrence of any Reportable Event, or
a prohibited transaction or accumulated funding deficiency (as those
terms are defined in ERISA), with respect to any Pension Benefit Plan
maintained or contributed to by a Covered Person or ERISA Affiliate;
(iii) receipt by a Covered Person or ERISA Affiliate of any notice from
a Multi-employer Plan regarding the imposition of withdrawal liability;
and (iv) receipt by a Covered Person or ERISA Affiliate of any notice of
the institution, or a Covered Person's expectancy of the institution, of
any proceeding, or receipt by such Covered Person or ERISA Affiliate of
any notice of the taking, or such Covered Person's expectancy of the
taking, of any other action, which may result in the termination of any
Pension Benefit Plan maintained or contributed to by such Covered Person
or ERISA Affiliate, or the withdrawal or partial withdrawal by a Covered
Person or ERISA Affiliate from any Pension Benefit Plan, and the filing
or receipt by a Covered
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Person or ERISA Affiliate of any such notice, and filing or receipt of
all subsequent reports or notices under ERISA with or from the Internal
Revenue Service, the PBGC, or the DOL relating to the same; and, in
addition to such notice, deliver to Agent a certificate of the President
or Chief Financial Officer of Borrower, which describes in detail such
events and the action that the affected Covered Person or ERISA
Affiliate proposes to take with respect thereto.
13.9.6. Borrower shall, within three days after it occurs,
deliver to Agent notice of any default or event of default, or the
occurrence of any event which would with the passage of time, giving of
notice or otherwise, constitute a default or event of default with
respect to any of the Permitted Indebtedness.
13.9.7. Borrower shall, within three days after it occurs,
deliver notice to Agent of the assertion by the holder of any capital
stock of Borrower or any Indebtedness in the outstanding principal
amount in excess of $2,500,000 that a default exists with respect
thereto or that Borrower is not in compliance with the terms thereof, or
of the threat or commencement by such holder of any enforcement action
because of such asserted default or noncompliance.
13.9.8. Borrower shall, promptly after becoming aware thereof,
deliver notice to Agent of any pending strike, work stoppage, material
unfair labor practice claim or other material labor dispute affecting
Borrower.
13.9.9. Borrower shall deliver notice to Agent of any change in
Borrower's name, state of incorporation, form of organization, trade
names or styles under which Borrower will conduct business at least 30
days prior to such change.
13.9.10. Borrower shall, promptly after becoming aware thereof,
deliver notice to Agent of any material adverse change in Borrower's
property, business, operations or condition (financial or otherwise).
13.9.11. Borrower shall, promptly after becoming aware thereof,
deliver notice to Agent of any violation of any Law applicable to
Borrower or its properties which would have a Material Adverse Effect.
13.10. BORROWING OFFICER. Borrower shall keep on file with Agent at
all times an appropriate instrument naming each Borrowing Officer.
13.11. ACCOUNTING SYSTEM. Each Covered Person shall maintain a system
of accounting established and administered in accordance with GAAP.
13.12. FINANCIAL STATEMENTS AND CERTIFICATE OF COMPLIANCE. Borrower
shall deliver to each Lender:
13.12.1. ANNUAL FINANCIAL STATEMENTS. Within 90 days after the
close of each Fiscal Year, year-end consolidated Financial Statements of
Holdings and its Subsidiaries, containing an audit report without
qualification by an independent certified public accounting firm
selected by Borrower and satisfactory to Agent, and accompanied by (a)
year-end unaudited consolidating Financial Statements of Holdings and
its Subsidiaries in the respective forms thereof normally prepared by
Borrowers and in substantially the forms historically prepared by
Borrowers (b) a Compliance Certificate of the Chief Financial Officer of
Borrower, (c) a certificate of the independent certified public
accounting firm that examined such Financial Statements to the effect
that they have reviewed and are familiar with this Agreement and that,
in examining such Financial Statements, they did not become aware of any
breach or violation of the covenants set forth in Sections 14.1 through
14.5 (but, as to the covenants set forth in Sections 14.1 through 14.5,
without an expansion of its audit scope beyond that normally required to
give an opinion on the consolidated financial statements) and in Section
15, except for those, if any, described in reasonable detail in such
certificate and
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(d) when issued, the management letter delivered by such independent
certified public accounting firm to Holdings' Audit Committee in
connection with their audit.
13.12.2. QUARTERLY FINANCIAL STATEMENTS. Within 45 days after
the end of each of the first three fiscal quarters of Borrower,
unaudited consolidated Financial Statements of Holdings and its
Subsidiaries for the quarters not covered by the latest year-end
Financial Statements, in each case accompanied by a Compliance
Certificate of the Chief Financial Officer of Borrower.
Each Compliance Certificate shall be in substantially the form attached hereto
as Exhibit 13.12, shall contain detailed calculations of the financial
measurements referred to in Sections 14.2.2 and 15 for the relevant periods, and
shall contain statements by the signing officer to the effect that, except as
explained in reasonable detail in such Compliance Certificate, (i) the attached
Financial Statements are complete and correct in all material respects (subject,
in the case of Financial Statements other than annual, to normal year-end audit
adjustments) and have been prepared in accordance with GAAP applied consistently
throughout the periods covered thereby and with prior periods (except as
disclosed therein), (ii) all of the representations and warranties of Borrower
contained in this Agreement and other Loan Documents are true and correct in all
material respects as of the date such certification is given as if made on such
date, and (iii) there exists no Default which is continuing that has not been
waived in writing by Lenders and no Event of Default has occurred that has not
been waived in writing by Majority Lenders. If any Compliance Certificate
delivered to Lenders discloses that a representation or warranty is not true and
correct in all material respects, or that a Default or Event of Default has
occurred that has not been waived in writing by Majority Lenders, such
Compliance Certificate shall set forth what action Borrower has taken or
proposes to take with respect thereto.
13.13. STOCKHOLDER AND SEC REPORTS. Borrower shall deliver to Agent,
promptly after their preparation, copies of any and all (i) proxy statements,
financial statements and reports which Borrower makes available to its
stockholders, and (ii) reports, registration statements and prospectuses, if
any, filed by Borrower with any securities exchange or the Securities and
Exchange Commission or any Governmental Authority succeeding to any of its
functions.
13.14. OTHER INFORMATION. Upon the written request of Agent, Borrower
shall promptly deliver to Agent such other information about the business,
operations, revenues, financial condition, property, or business prospects of
Borrower as Agent may, from time to time, reasonably request. Agent shall have
the right at any time, without restriction, to communicate with Borrower's
independent auditors regarding the financial condition of Borrower and the audit
tests conducted by the independent accountants.
13.15. AUDITS BY AGENT AND LENDERS. Agent and Lenders or Persons
authorized by and acting on behalf of Agent and Lenders may at any time during
normal business hours audit the books and records of each Covered Person from
time to time upon reasonable notice to such Covered Person, and in the course
thereof may make copies or abstracts of such books and records and discuss the
affairs, finances and books and records of such Covered Person with its
officers. Each Covered Person shall cooperate with Agent and such Persons in
the conduct of such audits and shall deliver to Agent any instrument necessary
for Agent to obtain records from any service bureau maintaining records for such
Covered Person. Borrower shall reimburse Agent for all costs and expenses
incurred by it in conducting each audit; provided, however, that if a Default or
Event of Default does not exist, such reimbursement shall not exceed $3,500 in
the aggregate for any twelve month period.
13.16. ACCESS TO OFFICERS. Each Covered Person shall permit Persons
authorized by Agent to discuss the affairs, finances and accounts of such
Covered Person with its officers as often as Agent may reasonably request, in
its discretion and such Covered Person shall direct such officers to cooperate
with Agent and make full disclosure to Agent of those matters that they may deem
relevant to the continuing ability of Borrower to pay and perform the Loan
Obligations timely; provided, however, that no disclosure of attorney work
product or information protected by the attorney-client privilege shall be
required.
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14. NEGATIVE COVENANTS.
Borrower covenants and agrees that, while any of the Commitments remains
in effect or any of the Loan Obligations are owing to Lenders by Borrower,
Borrower shall not, directly or indirectly, do any of the following, or permit
any Covered Person to do any of the following, without the prior written consent
of Lenders:
14.1. INVESTMENTS. Make any Investments in other Persons except the
following ("Permitted Investments"):
14.1.1. Any Investments to the extent they do not exceed
$5,000,000 in the aggregate for all Covered Persons.
14.1.2. Investments in Subsidiaries.
14.1.3. Investments in (i) open market investment grade
commercial paper maturing 270 days or less from the date of issuance and
rated not less than P-2 by Xxxxx'x Investors Service, Inc., or not less
than A-2 by Standard & Poors Corporation; (ii) marketable obligations,
maturing within 180 days after acquisition thereof, issued or
unconditionally guaranteed by the United States of America or an
instrumentality or agency thereof and entitled to the full faith and
credit of the United States of America; (iii) money market funds that
invest solely in the types of Investments permitted under clauses (i)
and (ii); (iv) bankers acceptances and repurchase agreements of domestic
offices of any of Banks or any other banks which fall within the
descriptions of clause (v), provided that each such repurchase agreement
shall be fully secured by securities described in clause (ii); (v)
certificates of deposit and time deposits (including Eurodollar
deposits) maturing within 180 days from the date of deposit thereof,
with a domestic office of any of Banks or any other bank which is a
national bank organized under the laws of the United States of America
and (a) having capital, surplus and undivided profits of at least
$100,000,000 or (b) so long as all such deposits are federally insured;
(vi) readily marketable tax-free municipal bonds of a domestic issuer
maturing in two years or less from the date of acquisition thereof which
are rated Aa3 or better by Xxxxx'x Investors Services, Inc., or AA- or
better by Standard & Poors Corporation and (vii) interest rate exchange,
collar, cap or similar agreements, not in excess of $30,000,000 notional
amount in the aggregate at any one time outstanding, for the purpose of
protecting Borrower against interest rate fluctuations (and not for
speculative purposes).
14.1.4. Accounts arising in the ordinary course of business and
payable in accordance with Borrower's customary trade terms.
14.1.5. Equity securities of Holdings with a purchase price not
in excess of $20,000,000 in the aggregate.
14.1.6. Notes or securities received by Borrower in settlement
of Indebtedness of other Persons to Borrower that was incurred in the
ordinary course of Borrower's business and secured notes representing
the sales of assets permitted by Section 14.5.
14.1.7. Amounts which may be due under the Tax Sharing
Agreement.
14.1.8. Such other Investments that are cash equivalents and are
approved by the Majority Lenders in their discretion.
14.2. INDEBTEDNESS. Create, incur, assume or allow to exist any
Indebtedness except the following (the "Permitted Indebtedness"):
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14.2.1. All unsecured Indebtedness of Borrower to the extent
that (i) its incurrence will not result in a failure to comply with any
of the covenants in Section 15 and (ii) it would be classified as a
current liability under GAAP.
14.2.2. All consolidated Funded Debt of Holdings to the extent
the ratio of Funded Debt to Total Capitalization does not exceed 40%.
For purposes of this Section, "Total Capitalization" means Stockholders'
Equity plus all Funded Debt of Borrower.
14.2.3. Indebtedness to trade creditors incurred in the ordinary
course of business, to the extent such Indebtedness is fully paid in
accordance with customary trade terms.
14.2.4. The Loan Obligations.
14.2.5. Indebtedness secured by Permitted Security Interests.
14.2.6. Indebtedness of X'Xxxxxxxx - Virginia with respect to
industrial revenue bonds previously issued by the Industrial Development
Authority of Halifax County, Virginia, and renewals and extension (but
not increases) thereof.
14.2.7. Indebtedness with respect to a private placement of debt
or industrial revenue bonds issued in connection with, or to refinance
indebtedness incurred to finance the construction of, the New
Manufacturing Facility.
14.2.8. Indebtedness under interest rate contracts protecting
Borrower or a Covered Person against interest rate increases on other
Indebtedness, or under foreign currency exchange hedging and protection
contracts.
14.2.9. Indebtedness of one Covered Person to another.
14.2.10. Any reimbursement obligation of Borrower or X'Xxxxxxxx
- Virginia in connection with a letter of credit that replaces the IRB
Letter of Credit as contemplated in Section 2.2.4.
14.2.11. Amounts which may be due under the Tax Sharing
Agreement.
14.2.12. Guaranties and indirect obligations by a Covered Person
of any Permitted Indebtedness ("Permitted Guaranties").
14.3. INDIRECT OBLIGATIONS. Create, incur, assume or allow to exist any
Indirect Obligations except guaranties by a Covered Person of Permitted
Indebtedness of another Covered Person and Permitted Guaranties ("Permitted
Indirect Obligations").
14.4. SECURITY INTERESTS. Create, incur, assume or allow to exist any
Security Interest upon all or any part of its property, real or personal, now
owned or hereafter acquired, except the following (the "Permitted Security
Interests"):
14.4.1. Security Interests for taxes, assessments or
governmental charges not delinquent or being diligently contested in
good faith and by appropriate proceedings and for which adequate book
reserves in accordance with GAAP are maintained.
14.4.2. Security Interests arising out of deposits in connection
with workers' compensation insurance, unemployment insurance, old age
pensions, or other social security or retirement benefits legislation.
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14.4.3. Deposits or pledges to secure bids, tenders, contracts
(other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds, and other obligations of like
nature arising in the ordinary course of business.
14.4.4. Security Interests imposed by any Law, such as
mechanics', workmen's, materialmen's, landlords', carriers', or other
like Security Interests arising in the ordinary course of business which
secure payment of obligations which are not past due or which are being
diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP are maintained on
Borrower's books.
14.4.5. Purchase money Security Interests securing payment of
the purchase price of capital assets acquired by Borrower after the date
of the Original Loan Agreement, or any arrangement with any Person
providing for Borrower to lease or rent property that Borrower has or
will sell or otherwise transfer to such person, in an aggregate amount
not to exceed $15,000,000 at any one time outstanding.
14.4.6. Security Interests granted to secure the Indebtedness of
X'Xxxxxxxx - Virginia with respect to industrial revenue bonds
previously issued by the Industrial Development Authority of Halifax
County, Virginia, and renewals and extension (but not increases)
thereof.
14.4.7. Security Interests existing on the Effective Date that
were permitted under the Original Loan Agreement.
14.5. DISPOSAL OF PROPERTY. Sell, transfer, exchange, lease or
otherwise dispose of any of its property except (i) sales in the ordinary course
of business and in accordance with customary trade terms, (ii) sales, transfers
and disposals of obsolete or unusable equipment for a fair consideration, and
(iii) other sales, transfers and disposals that do not exceed in the aggregate
10% of Holdings' Tangible Net Worth in any fiscal year.
14.6. CAPITAL CHANGE. Make any change in its capital structure which
could have a Material Adverse Effect, except as permitted by Section 14.1.5.
14.7. CHANGE OF BUSINESS. Engage in any line of business other than
substantially as conducted on the Effective Date or discontinue any significant
line of business.
14.8. TRANSACTIONS WITH AFFILIATES. Enter into or be a party to any
transaction or arrangement, including without limitation, the purchase, sale or
exchange of property of any kind or the rendering of any service, with any
Affiliate, or make any loans or advances to any Affiliate; provided, however,
that if no Event of Default has occurred and is continuing, Borrower may engage
in the foregoing transactions in the ordinary course of business and pursuant to
the reasonable requirements of its business and on fair and reasonable terms
substantially as favorable to it as those which it could obtain in a comparable
arm's-length transaction with a non-Affiliate.
14.9. DEBT PAYMENTS. Default upon or fail to pay any Indebtedness for
money borrowed as the same matures.
14.10. CONFLICTING AGREEMENTS. Enter into any agreement that, to
Borrower's knowledge at the time of execution thereof, would, if fully complied
with by it, result in a Default or Event of Default either immediately or upon
the elapsing of time.
14.11. NEW SUBSIDIARIES. Organize, create or acquire any Subsidiary
unless such Subsidiary executes and delivers to Agent for the benefit of the
Lenders a guaranty of the Loan Obligations satisfactory to Lenders.
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14.12. ACQUISITIONS. Purchase, lease or otherwise acquire all or
substantially all of the assets of another Person for a purchase price in excess
of $10,000,000.
15. FINANCIAL COVENANTS.
15.1. SPECIAL DEFINITIONS. As used in this Section 15 and elsewhere in
this Agreement, the following capitalized terms have the following meanings:
"EBITDA" means, with respect to any fiscal period of Borrower, the net
income of Borrower for such fiscal period, as determined in accordance
with GAAP and reported on the Financial Statements for such period,
minus any extraordinary gains, plus any extraordinary losses, plus all
of the following that were deducted in calculating such net income: (a)
interest expense; (b) provisions for taxes; and (c) depreciation,
amortization and other non-cash charges.
"Funded Debt" as of the end of any period with respect to any Person
means the sum of the debt of such Person for borrowed money as it
appears on such Person's balance sheet (prepared in accordance with
GAAP) as of the end of such Period.
"Tangible Assets" means all of the assets of Borrower as determined in
accordance with GAAP and reported on the Financial Statements except:
(a) patents, copyrights, trademarks, trade names, franchises, goodwill,
and other similar intangibles; (b) unamortized debt discount and
expense; and (c) fixed assets to the extent of any write-up in the book
value thereof resulting from a revaluation effective after the date of
the Original Loan Agreement.
"Tangible Net Worth" means, at any date: (a) the book value (net of
depreciation, obsolescence, amortization, valuation and other proper
reserves determined in accordance with GAAP) at which Tangible Assets
would be shown on a balance sheet of Borrower at such date prepared in
accordance with GAAP; less (b) the amount at which the liabilities of
Borrower would be shown on such balance sheet, including as liabilities
all reserves for contingencies and other potential liabilities which
would be shown on such balance sheet or disclosed in the notes thereto.
15.2. MAXIMUM INDEBTEDNESS. The ratio of Holdings' consolidated
Indebtedness for borrowed money to its EBITDA shall at no time exceed 2.75 to
1.0.
15.3. MINIMUM CURRENT RATIO. The ratio of Borrower's Current Assets to
its Current Liabilities shall at no time be less than 2.0 to 1.0.
15.4. TANGIBLE NET WORTH. Borrower's Tangible Net Worth shall at no
time be less than $75,000,000 plus (i) 50% of Borrower's cumulative Net Income
(exclusive of any Net Loss) after June 30, 1994, and (ii) 100% of the net
proceeds to Borrower from issuance of any equity securities, minus all amounts
expended by Borrower to repurchase equity securities to the extent the aggregate
thereof does not exceed $20,000,000.
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16. DEFAULT.
16.1. EVENTS OF DEFAULT. Any one or more of the following shall
constitute an "Event of Default" under this Agreement:
16.1.1. FAILURE TO PAY PRINCIPAL OR INTEREST. Failure of
Borrower to pay any principal of the Revolving Loans when due or
interest accrued thereon within 5 days after the date when due.
16.1.2. FAILURE TO PAY OTHER AMOUNTS OWED TO LENDERS. Failure
of Borrower to pay any of the Loan Obligations (other than principal of
the Revolving Loans or interest accrued thereon) within 5 days after the
due date specified on a written notice from Agent.
16.1.3. FAILURE TO PAY AMOUNTS OWED TO OTHER PERSONS. Failure
of any Covered Person to pay any Indebtedness for borrowed money of such
Covered Person over $2,500,000 to Persons other than Lenders which
continues unwaived beyond any applicable grace period specified in the
documents evidencing or governing such Indebtedness.
16.1.4. REPRESENTATIONS OR WARRANTIES. Any representation or
warranty made by Borrower in this Agreement, or any statement or
representation made in any certificate, report, opinion or other
document delivered pursuant to this Agreement, is discovered to have
been false in any material respect when made.
16.1.5. COVENANTS. Failure of any Covered Person to comply in
any material respect with of any of the terms or provisions of any of
the Loan Documents applicable to it (other than a failure which
constitutes an Event of Default under any of Sections 16.1.1 through
16.1.4) which is not remedied or waived in writing by Lenders within 30
days after Borrower becomes aware of such failure; provided, however,
that if such failure is not susceptible of cure within such 30 day
period and a plan to cure such failure has been approved in writing by
Lenders (such approval not to be unreasonably withheld) and such Covered
Person has commenced action according to such plan within the 30 day
period and is prosecuting such plan diligently, then no Event of Default
shall occur hereunder until the later of 60 days after Borrower becomes
aware of such failure or such other date agreed to by Borrower and
Lenders, provided, however, that no such grace period shall apply, and
an Event of Default shall exist promptly upon such failure to comply, if
such failure may not, in Lenders' reasonable determination, be cured by
Borrower during such 30 day period or within a reasonable time
thereafter according to any plan provided to Lenders.
16.1.6. ACCELERATION OF OTHER INDEBTEDNESS. Any Obligation of a
Covered Person in an amount in excess of $2,500,000 (other than the Loan
Obligations) for the payment of borrowed money becomes or is declared to
be due and payable or required to be prepaid (other than by a regularly
scheduled prepayment) prior to the original maturity thereof.
16.1.7. DEFAULT UNDER OTHER AGREEMENTS. The occurrence of any
default or event of default under any Contract for borrowed money in
excess of $2,500,000 to which a Covered Person is a party (other than
the Loan Documents), which default continues unwaived beyond any
applicable grace period provided therein and will have a Material
Adverse Effect. The occurrence of any default or event of default under
any other agreement to which a Covered Person is a party (other than the
Loan Documents), which default continues unwaived beyond any applicable
grace period provided therein and will have a Material Adverse Effect
which Lenders reasonably believe will ultimately result in a Default
under this Agreement .
16.1.8. BANKRUPTCY; INSOLVENCY; ETC. A Covered Person (i) fails
to pay, or admits in writing its inability to pay, its debts as they
become due, or otherwise becomes insolvent (however evidenced); (ii)
makes an assignment for the benefit of creditors; (iii) files a petition
in bankruptcy, is adjudicated insolvent
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or bankrupt, petitions or applies to any tribunal for any receiver or
any trustee of such Covered Person or any substantial part of its
property; (iv) commences any proceeding relating to such Covered Person
under any reorganization, arrangement, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; (v) has commenced against it any such proceeding
which remains undismissed for a period of 60 days, or by any act
indicates its consent to, approval of, or acquiescence in any such
proceeding or the appointment of any receiver of or any trustee for it
or of any substantial part of its property, or allows any such
receivership or trusteeship to continue undischarged for a period of 60
days; or (vi) takes any corporate action to authorize any of the
foregoing.
16.1.9. JUDGMENTS; ATTACHMENT; ETC. Any one or more judgments
or orders is entered against a Covered Person or any attachment or other
levy is made against the property of a Covered Person with respect to a
claim or claims involving in the aggregate liabilities (not paid or
fully covered by insurance, less the amount of reasonable deductibles)
in excess of $2,500,000, becomes final and non-appealable or if timely
appealed, collection thereof is not stayed pending the appeal.
16.1.10. PENSION BENEFIT PLAN TERMINATION, ETC. Any Pension
Benefit Plan termination by the PBGC or the appointment by the
appropriate United States District Court of a trustee to administer any
Pension Benefit Plan or to liquidate any Pension Benefit Plan; or any
event which constitutes grounds either for the termination of any
Pension Benefit Plan by PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer or liquidate any
Pension Benefit Plan shall have occurred and be continuing for thirty
(30) days after Borrower has notice of any such event; or any voluntary
termination of any Pension Benefit Plan which is a defined benefit
pension plan as defined in Section 3(35) of ERISA while such defined
benefit pension plan has an accumulated funding deficiency, unless Agent
has been notified of such intent to voluntarily terminate such plan and
Lenders have given their consent and agreed that such event shall not
constitute a Default; or the plan administrator of any Pension Benefit
Plan applies under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(1) of the Code and Lenders
believe that the substantial business hardship upon which the
application for such waiver is based could subject any Covered Person or
ERISA Affiliate to a liability in excess of 5% of such Covered Person's
Net Worth.
16.1.11. LIQUIDATION OR DISSOLUTION. Except as permitted under
Section 13.2, a Covered Person files a certificate of dissolution under
applicable state law or is liquidated or dissolved or suspends or
terminates the operation of its business, or has commenced against it
any action or proceeding for its liquidation or dissolution or the
winding up of its business, or takes any corporate action in furtherance
thereof.
16.1.12. SEIZURE OF ASSETS. All or any part of the property of
Borrower is nationalized, expropriated or condemned, seized or otherwise
appropriated, or custody or control of such property or of Borrower is
assumed by any Governmental Authority or any court of competent
jurisdiction at the instance of any Governmental Authority, and such
action has a Material Adverse Effect.
16.1.13. CHANGE OF CONTROL. Holdings merges or consolidates
with or into another Person (including a Covered Person) and is not the
surviving corporation of such merger or consolidation, or permits any
Person or Group to become the record or beneficial owner, directly or
indirectly, of securities representing thirty percent (30%) or more of
the voting power of Holdings' then outstanding securities having the
power to vote, or acquiring the power to elect a majority of the Board
of Directors of Holdings.
16.1.14. LOAN DOCUMENTS. Any of the Loan Documents ceases to be
in full force and effect.
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16.2. RIGHTS AND REMEDIES IN THE EVENT OF DEFAULT.
16.2.1. TERMINATION OR SUSPENSION OF COMMITMENTS. Upon an Event
of Default described in Section 16.1.8, the Commitments shall be deemed
canceled. Upon any other Event of Default, and at any time thereafter,
Agent (if Majority Lenders concur) may cancel or suspend the
Commitments. Such cancellation or suspension may be without demand or
notice of any kind, which Borrower expressly waives.
16.2.2. ACCELERATION. Upon an Event of Default described in
Section 16.1.8, all of the outstanding Loan Obligations shall
automatically become immediately due and payable. Upon any other Event
of Default, and at any time thereafter, Agent (if Majority Lenders
concur) may declare all of the outstanding Loan Obligations immediately
due and payable. Such acceleration may be without demand or notice of
any kind, which Borrower expressly waives.
16.2.3. RIGHT OF SETOFF. Upon the occurrence of any Event of
Default and at any time and from time to time thereafter, each Lender is
hereby authorized, without notice to Borrower (any such notice being
expressly waived by Borrower), to setoff against the Loan Obligations
any and all deposits (general or special, time or demand, provisional or
final) at any time held, or any other Indebtedness at any time owing by
such Lender to or for the credit or the account of Borrower,
irrespective of whether or not such Lender shall have made any demand
under this Agreement or the Notes and although such Loan Obligations may
be unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Lender may otherwise have. A Lender
that exercises its rights under this Section will notify Borrower
promptly after such exercise.
16.2.4. MISCELLANEOUS. Upon the occurrence of an Event of
Default and at any time thereafter, Agent and Lenders (if Majority
Lenders concur) may exercise any other rights and remedies available to
them under the Loan Documents or otherwise available to Lenders at law
or in equity.
16.2.5. APPLICATION OF FUNDS. Any funds received by Lenders or
Agent for the benefit of Lenders with respect to the Loan Obligations
after any acceleration shall be applied as follows: (i) first, to
reimburse each of the Lenders prorata for any amounts due to Lenders
under Section 18.6; (ii) second, to reimburse to Lenders prorata all
unreimbursed costs and expenses paid or incurred by Lenders that are
payable or reimbursable by Borrower hereunder; and (iii) third, to the
payment to each of the Lenders prorata of accrued and unpaid fees due
hereunder and all other amounts due hereunder (other than the Revolving
Loans and interest accrued thereon); (iv) fourth, to the payment of
interest accrued on the Revolving Loans prorata to each of the Lenders;
(v) fifth, to the prorata payment of the Revolving Loans of each of the
Lenders; and (vi) sixth, to the payment to each of the Lender's prorata
of the other Loan Obligations. Any remaining amounts shall be paid to
Borrower or such other Persons as shall be legally entitled thereto.
16.3. NOTICE. Any notice of intended action required to be
given by Agent or Lenders, if given as provided in Section 19.2 at least
10 days prior to such proposed action, shall be effective and constitute
reasonable and fair notice to Borrower.
17. AGENT AND LENDERS.
17.1. APPOINTMENT OF AGENT. Boatmen's is hereby appointed Agent
hereunder and under each of the other Loan Documents. Each Lender irrevocably
authorizes Boatmen's to act as the Agent for such Lender hereunder. Agent shall
not have any duties or responsibilities except those expressly stated in the
Loan Documents, nor any fiduciary relationship with any Lender, and no implied
covenants, functions, duties, responsibilities, obligations or liabilities shall
be read into the Loan Documents or otherwise exist against Agent by reason of
this Agreement.
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17.2. POWERS. Agent shall have and may exercise such powers hereunder
as are specifically delegated to Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. Agent shall have no implied duties
to Lenders, or any obligation to Lenders to take any action hereunder except
action specifically provided by this Agreement to be taken by Agent.
17.3. GENERAL IMMUNITY OF AGENT. Neither Agent nor any of its
directors, officers, agents, or employees shall be liable to any Lender for any
act or failure to act with respect to their respective duties hereunder that
does not constitute gross negligence or willful misconduct.
17.4. NO RESPONSIBILITY FOR REVOLVING LOANS, RECITALS, ETC. Agent and
its directors, officers, agents, and employees shall not be responsible to
Lenders for any recitals, reports, statements, warranties or representations
herein or in any Loan Document or be bound to ascertain or inquire as to the
performance or observance of any of the terms of this Agreement.
17.5. ACTION ON INSTRUCTIONS OF MAJORITY LENDERS. Agent and its
directors, officers, agents, and employees shall in all cases be fully protected
in acting, or in refraining from acting, hereunder in accordance with written
instructions of Majority Lenders, and such instructions and any act or failure
to act pursuant thereto shall be binding on all of Lenders and on all holders of
Notes.
17.6. EMPLOYMENT OF AGENTS AND COUNSEL. Agent may execute any of its
duties hereunder by or through employees, agents, and attorneys-in-fact and
shall not be answerable to Lenders, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
17.7. RELIANCE ON DOCUMENTS; COUNSEL. Agent shall be entitled to rely
upon any notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document reasonably believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by it, which counsel may be
its employees.
17.8. AGENT'S REIMBURSEMENT AND INDEMNIFICATION. Lenders agree to
reimburse and indemnify Agent according to their Prorata Shares (i) for any
amounts not reimbursed by the Borrower for which Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any expenses
incurred by Agent on behalf of Lenders in connection with the enforcement of the
Loan Documents, including but not limited to attorneys' fees and court costs,
and (iii) for any liabilities, obligations,losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against Agent in any
way relating to or arising out of this Agreement or any other document delivered
in connection with this Agreement or the transactions contemplated hereby or the
enforcement of any of the terms hereof or of any such other documents; provided,
however, that no Lender shall be liable for any of the foregoing to the extent
arising from any act or failure to act of Agent that constitutes gross
negligence or willful misconduct with respect to its duties as Agent.
17.9. RIGHTS AS A LENDER. With respect to its Commitments, Advances
made by it and the Notes issued to it, Agent shall have the same rights and
powers hereunder as any Lender and may exercise the same as though it were not
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include Agent in its individual capacity as a lender hereunder. Agent
may accept deposits from, lend money to, and generally engage in any kind of
banking or trust business with Borrower or any Subsidiary or Affiliate of
Borrower as if it were not Agent.
17.10. INDEPENDENT CREDIT DECISIONS. EACH LENDER ACKNOWLEDGES THAT IT
HAS, INDEPENDENTLY AND WITHOUT RELIANCE UPON AGENT OR ANY OTHER LENDER AND BASED
ON THE LATEST FINANCIAL STATEMENTS FURNISHED BY BORROWER AND SUCH OTHER
DOCUMENTS AND INFORMATION AS IT HAS DEEMED APPROPRIATE, MADE ITS OWN CREDIT
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ANALYSIS AND DECISION TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
EACH LENDER ALSO ACKNOWLEDGES THAT IT WILL, INDEPENDENTLY AND WITHOUT RELIANCE
UPON AGENT OR ANY OTHER LENDER 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 AND THE OTHER LOAN DOCUMENTS.
17.11. SUCCESSOR AGENT. Agent may resign at any time by giving written
notice thereof to Lenders and Borrower. At the time of such resignation, Agent
shall have the right to assign its rights and delegate its associated
obligations as Agent under the Loan Documents to one or more other financial
institutions. In the event that Agent decides to make any such assignment, so
long as no Default or Event of Default exists, Agent will use its best efforts
to make such assignment to a financial institution acceptable to Borrower;
otherwise, Agent will send written notification to Borrower of the assignment.
If Agent resigns without assigning its rights and delegating its associated
obligations as Agent under the Loan Documents, then Majority Lenders and
Borrower (if no Event of Default then exists) shall have the right to appoint,
on behalf of the Borrower and Lenders, a successor Agent. If no successor Agent
has been so appointed by Majority Lenders and Borrower and accepted such
appointment within 30 days after the resigning Agent's giving notice of
resignation, then the resigning Agent may appoint, on behalf of Borrower and
Lenders, a successor Agent. Such successor Agent shall be a commercial bank
having capital and retained earnings of at least $250,000,000. Agent's
resignation shall not be effective until a successor Agent has been appointed
and accepts such appointment. Upon a successor Agent's acceptance of its
appointment, such successor Agent shall succeed to and become vested with all
the rights, powers, privileges and duties of the resigning Agent as such, and
the resigning Agent shall be discharged from its duties and obligations as Agent
hereunder. After the resignation of Agent, the provisions of this Section 17.11
shall continue in effect for the resigning Agent's benefit in respect of any act
or failure to act while it was Agent hereunder.
17.12. NOTIFICATION OF LENDERS. Each Lender agrees to use its good
faith efforts, upon becoming aware of anything which would have a Material
Adverse Effect, to promptly notify the other Lenders thereof. Agent shall use
its good faith efforts to promptly deliver to each Lender copies of every
written notice, demand, report (including any financial report), or other
writing which Agent gives to or receives from Borrower and which itself
constitutes, or which contains information about, something that would have a
Material Adverse Effect with respect to Borrower's Loan Obligations to such
Lender. Agent and its directors, officers, agents, and employees shall have no
liability to any Lender for failure to deliver any such item to such Lender
unless the failure constitutes gross negligence or willful misconduct.
17.13. NO KNOWLEDGE OF DEFAULT. Agent shall not be deemed to have
knowledge of any Default or Event of Default unless Agent has received written
notice thereof from a Lender or the Borrower referring to this Agreement and
describing such Default or Event of Default, or Agent otherwise has actual
knowledge thereof. If Agent receives such notice or otherwise acquires such
actual knowledge, Agent shall notify Lenders of the same, solicit advice from
Lenders as to the appropriate course of action, and take such action (including
but not limited to actions contemplated by Section 16.2) as is directed by
Majority Lenders; provided, however, that unless and until Agent has received
such directions, Agent may at its option take such actions as it deems
appropriate without the direction of Majority Lenders in circumstances where the
ability of Lenders to recover the Loan Obligations may otherwise be materially
impaired.
17.14. COLLECTIONS AND DISTRIBUTIONS TO LENDERS BY AGENT; SETOFFS. All
interest, fees, and payments of principal received by Agent for the account of
Lenders shall be distributed by Agent to Lenders in accordance with their
Prorata Shares thereof at the time of such distribution on the same Business Day
when received, unless received after 2:00 p.m., St. Louis time, in which case
they shall be so distributed on the next Business Day. All amounts received by
any Lender on account of the Loan Obligations that are in excess of its Prorata
Share thereof, including amounts received by way of setoff by such Lender, shall
be accounted for and remitted promptly to Agent for distribution to the other
Lenders in accordance with their Prorata Shares thereof at the time of such
distribution. All such distributions shall be made according to instructions
that each Lender may give to Agent from time to time.
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18. GENERAL.
18.1. AGENT AND LENDERS' RIGHT TO CURE. For Borrower's account and at
Borrower's expense, Agent (with the concurrence of Majority Lenders) may from
time to time, but is not obligated to, pay (or make an Advance to pay) any
amount or do any act required of Borrower hereunder or requested by Agent or
Lenders to preserve, protect, maintain or enforce the Loan Obligations and which
Borrower fails to pay or do. Borrower shall reimburse to Agent on demand the
amount of all payments that Agent makes pursuant to this Section and all
out-of-pocket costs and expenses that Agent pays or incurs in connection with
any such action, and such reimbursement obligation shall be a Loan Obligation.
Any payment made or other action taken by Agent pursuant to this Section shall
be without prejudice to any right to assert an Event of Default hereunder and to
pursue Agent's and Lenders' other rights and remedies with respect thereto.
18.2. RIGHTS NOT EXCLUSIVE. Every right granted to Agent and Lenders
hereunder or under any other Loan Document or allowed to it at law or in equity
shall be deemed cumulative and may be exercised from time to time.
18.3. SURVIVAL OF AGREEMENTS. All covenants and agreements made herein
and in the other Loan Documents shall survive the execution and delivery of this
Agreement, the Notes and other Loan Documents and the making of every Advance.
All agreements, obligations and liabilities of Borrower under this Agreement
concerning the payment of money to Agent and Lenders, including but not limited
to Borrower's obligations under Sections 18.5 and 18.6, but excluding the
obligation to repay the Revolving Loans and interest accrued thereon, shall
survive the repayment in full of the Revolving Loans and interest accrued
thereon, the return of the Notes to Borrower and the termination of the
Commitments.
18.4. PARTICIPATIONS. A Lender may in the ordinary course of its
commercial banking business and in accordance with applicable law grant
participations to one or more banks or other financial institutions in its
Revolving Loan. For this purpose, such Lender may disclose to a potential or
actual participant any information supplied to such Lender by or on behalf of
Borrower or Agent; provided that such participant has agreed in writing to the
confidentiality obligations contained in Section 19.3. Borrower hereby
acknowledges and agrees that every such participant has the same right of setoff
as does such Lender under Section 16.2.3.
18.5. PAYMENT OF EXPENSES. Borrower agrees to pay or reimburse to each
Lender all of such Lender's out-of-pocket costs (to the extent they do no
exceed $5000 in the aggregate) incurred in connection with such Lender's due
diligence review before execution of the Loan Documents; the negotiation and
preparation of the Loan Documents; the interpretation of any of the Loan
Documents; the enforcement of such Lender's rights and remedies under the Loan
Documents after a Default or Event of Default; any amendment of or
supplementation to any of the Loan Documents; and any waiver, consent or
forbearance with respect to any Default or Event of Default. A Lender's
out-of-pocket costs may include but are not limited to the following, to the
extent they are reasonable and are actually paid or incurred by such Lender: the
cost of searches for Security Interests existing against Covered Persons;
appraisal fees; environmental consultant fees; litigation costs; and all
attorneys' and paralegals' expenses and reasonable fees. Attorneys' and
paralegals' expenses may include but are not limited to filing charges;
telephone, data transmission, facsimile and other communication costs; courier
and other delivery charges; and photocopying charges. Litigation costs may
include but are not limited to filing fees, deposition costs, expert witness
fees, expenses of service of process, and other such costs paid or incurred in
any administrative, arbitration, or court proceedings involving a Lender and any
Covered Person, including but not limited to proceedings under the Federal
Bankruptcy Code. All costs which Borrower is obligated to pay or reimburse to a
Lender are Loan Obligations payable to such Lender and are payable on demand by
Agent or such Lender.
18.6. GENERAL INDEMNITY. Borrower shall pay, indemnify and hold
harmless Agent and each Lender and their respective directors, officers,
employees, agents, and representatives (the "Indemnified Parties") for, from and
against, and promptly to reimburse the Indemnified Parties for, any and all
claims, damages, liabilities, losses, costs
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and expenses (including, without limitations, reasonable attorneys' fees and
expenses and amounts paid in settlement) (the "Indemnified Liabilities")
incurred, paid or sustained by the Indemnified Parties in connection with,
arising out of, based upon or otherwise involving or resulting from any
threatened, pending or completed action, suit, investigation or other proceeding
by, against or otherwise involving the Indemnified Parties and in any way
dealing with, relating to or otherwise involving this Agreement, any of the
other Loan Documents, or any transaction contemplated hereby or thereby (each a
"Triggering Event"); provided, however, that Borrower shall have no obligation
to indemnify the Indemnified parties hereunder with respect to any Indemnified
Liabilities arising from the gross negligence, bad faith or willful misconduct
of any of the Indemnified Parties. Borrower shall pay, indemnify and hold
harmless the Indemnified Parties for, from and against, and promptly reimburse
the Indemnified Parties for, any and all claims, damages, liabilities, losses,
costs and expenses (including, without limitations, reasonable attorneys' and
consultant fees and expenses, investigation and laboratory fees, removal,
remedial, response and corrective action costs, and amounts paid in settlement)
incurred, paid or sustained by the Indemnified Parties as a result of the
manufacture, storage, transportation, release or disposal of any Hazardous
Material on, from, over or affecting any of the assets, properties, or
operations of any Covered Person or any predecessor in interest, directly or
indirectly. An Indemnified Party shall provide reasonably prompt notification
to Borrower in the event such Indemnified Party anticipates making a claim under
this Section and shall keep Borrower reasonably informed of the status of any
action, suit, investigation or other proceeding hereunder. Borrower shall have
the right to approve (which approval shall not be unreasonably withheld) any
settlement agreement in connection with such action, suit, investigation or
proceeding. The obligations of Borrower under this Section 18.6 shall survive
the termination of the Commitments, the expiration of the Letters of Credit and
the payment and satisfaction of all of the Loan Obligations. To the extent that
any of the indemnities set forth in this Section may be unenforceable because it
is violative of any law or public policy, Borrower shall pay the maximum portion
which it is permitted to pay under applicable law.
18.7. LETTERS OF CREDIT. Agent shall inspect all documents presented
to it in connection with a draw on a Letter of Credit and notify Borrower of any
material acts, omissions or nonconformities manifest on the face of such
documents in connection therewith. Borrower assumes all risks of the acts or
omissions of any beneficiary of any of the Letters of Credit. Neither Agent nor
any of its directors, officers, employees, agents, or representatives shall be
liable or responsible for: (a) the use which may be made of any of the Letters
of Credit or for any acts or omissions of beneficiary in connection therewith;
(b) assuming Agent has fulfilled its obligations under the first sentence of
this Section, the validity, sufficiency or genuineness of documents, or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by
Agent against presentation of documents which, on their face, appear to comply
with the terms of any Letter of Credit, even though such documents may fail to
bear any reference or adequate reference to any such Letter of Credit; (d)
payment by Agent against presentation of documents which, on their face, do not
appear to comply with the terms of any Letter of Credit, if Borrower, after
receipt from Agent of notice of such nonconformity, instructs Agent to make
payment on such Letter of Credit or (e) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit in connection with
which Agent would, pursuant to the Uniform Customs and Practices for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500
(as amended from time to time), be absolved from liability. In furtherance and
not in limitation of the foregoing, Agent may accept documents that reasonably
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
18.8. CHANGES IN ACCOUNTING PRINCIPLES. If Borrower, at the end of its
Fiscal Year and with the concurrence of its independent certified public
accountants, changes the method of valuing its Inventory, or if any other
changes in accounting principles from those used in the preparation of any of
the Financial Statements are required by or result from the promulgation of
principles, rules, regulations, guidelines, pronouncements or opinions by the
Financial Accounting Standards Board or the American Institute of Certified
Public Accountants (or successors thereto or bodies with similar functions), and
any of such changes result in a change in the method of calculation of, or
affect the results of such calculation of, any of the financial covenants,
standards or terms found herein, then the parties hereto agree to enter into and
diligently pursue negotiations in order to amend such financial covenants,
standards or terms so as to equitably reflect such changes, with the desired
result that the criteria for evaluating the
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financial condition and results of operations of Borrower shall be the same
after such changes as if such changes had not been made; provided, however, that
until such changes are made, all financial covenants herein and all the
provisions hereof which contemplate financial calculation hereunder shall remain
in full force and effect.
18.9. LOAN RECORDS. The date and amount of all Advances to Borrower
and payments of amounts due from Borrower under the Loan Documents by a Lender
will be recorded in the records that Agent and such Lender normally maintains
for such types of transactions. The failure to record, or any error in
recording, any of the foregoing shall not, however, affect the obligation of
Borrower to repay the Revolving Loans and other amounts payable under the Loan
Documents. Each Lender will provide to Borrower a monthly statement of Advances,
payments, and other transactions pursuant to this Agreement. Such statement
shall be deemed correct, accurate and binding on Borrower and such Lender and an
account stated (except for reversals and reapplications of payments as provided
in Section 5.4.4 and corrections of errors discovered by such Lender), unless
Borrower notifies such Lender in writing to the contrary within sixty (60) days
after such statement is rendered. In the event a timely written notice of
objections is given by Borrower, only the items to which exception is expressly
made will be considered to be disputed by Borrower.
18.10. CHOICE OF FORUM. SUBJECT ONLY TO THE EXCEPTION IN THE NEXT
SENTENCE, BORROWER, AGENT, AND LENDERS HEREBY AGREE TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL COURT OF THE EASTERN DISTRICT OF MISSOURI AND THE
STATE COURTS OF MISSOURI LOCATED IN ST. LOUIS COUNTY OR THE CITY OF ST. LOUIS,
MISSOURI, AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH
RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREE THAT ANY DISPUTE CONCERNING
THE RELATIONSHIP BETWEEN AGENT, LENDERS, AND BORROWER OR THE CONDUCT OF ANY OF
THEM IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE SHALL BE HEARD ONLY IN THE
COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING, EACH OF THE PARTIES
HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
THOSE JURISDICTIONS.
18.11. SERVICE OF PROCESS. BORROWER, LENDERS AND AGENT EACH HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE SIGNATURE PAGES
HEREOF, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE (5) DAYS AFTER
THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S. MAILS. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF BORROWER, AGENT OR LENDERS TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
19. MISCELLANEOUS.
19.1. COMPUTATION OF TIME PERIODS. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" shall mean "from and including" and the words "to" and "until"
shall each mean "to but excluding." Periods of days referred to in this
Agreement shall be counted in calendar days unless Business Days are expressly
prescribed, and references in this Agreement to months and years shall mean
calendar months and calendar years, respectively, unless otherwise specified.
19.2. NOTICES. All notices, consents, requests and demands to or upon
the respective parties hereto shall be in writing, and shall be deemed to have
been given or made when delivered in person to those Persons listed on the
signature pages hereof or when deposited in the United States mail, postage
prepaid, or, in the case of telegraphic notice, or the overnight courier
services, when delivered to the telegraph company or overnight courier service,
or in the case of telex or telecopy notice, when sent, verification received, in
each case addressed as set forth on the signature pages hereof, or such other
address as either party may designate by notice to the other in accordance with
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the terms of this paragraph. Except as otherwise provided in this Agreement, no
notice given to or demand made on Borrower by Agent or Lenders in any instance
shall entitle Borrower to notice or demand in any other instance.
19.3. CONFIDENTIALITY. Agent and Lenders each agree to use reasonable
precautions to keep confidential, in accordance with its customary procedures
for handling confidential information and in accordance with safe and sound
banking practices, any non-public information, including, without limitation,
any environmental reports, supplied to it by any Covered Person pursuant to this
Agreement, provided that nothing herein shall limit the disclosure of any such
information (i) to Agent or any other Lender, (ii) to the extent required by
applicable Law, (iii) to counsel to Agent or any Lender, (iv) to bank examiners,
auditors or accountants and appropriate government examining authorities, (v) to
the extent necessary or appropriate in connection with any litigation to which
Agent or any Lender is a party, (vi) to the extent necessary or appropriate for
the purposes of protecting, preserving or exercising any rights under the Loan
Documents, or (vii) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) has agreed in writing to comply with the restrictions contained in
this Section the same as if it were a Lender.
19.4. AMENDMENTS, WAIVERS AND CONSENTS. No waiver of any Default or
Event of Default or waiver, or departure from, full compliance with any
provision of this Agreement, or of any of the other Loan Documents, or consent
to any departure by Borrower herefrom or therefrom, shall be effective unless it
is in writing and signed by authorized officers of Borrower, Agent and Majority
Lenders; provided, however, that no amendment or waiver shall be effective,
unless in writing and signed by each Lender affected thereby, to the extent it
(i) changes the amount of such Lender's Commitments (ii) changes the principal
of or the rate of interest on such Lender's Commitments, (iii) postpones any
date fixed for any payment of principal of or interest on any amount owed to
such Lender or the fees payable to such Lender hereunder, (iv) changes the
definition of "Majority Lenders", (v) amends any of the provisions of Section 14
or (vi) amends this Section 19.4; and no amendment of this Agreement or of any
of the Loan Documents shall be effective unless it is in writing and signed by
authorized officers of Borrower, Agent and all Lenders; provided, however, that
any such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No failure by Borrower, Agent or Lenders to
exercise, and no delay by Borrower, Agent or Lenders in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Borrower, Agent or Lenders of any right,
remedy, power or privilege hereunder preclude any other exercise thereof, or the
exercise of any other right, remedy, power or privilege.
19.5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and all future holders of the Notes
and their respective successors and assigns, except that Borrower may not
assign, delegate or transfer any of its rights or obligations under this
Agreement without the prior written consent of Agent and Lenders. With respect
to Borrower's successors and assigns, such successors and assigns shall include,
without limitation, any receiver, trustee or debtor-in-possession of or for
Borrower. Each Lender shall have the right to assign its rights and to delegate
its obligations under the Loan Documents.
19.6. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction unless the ineffectiveness of such provision
would result in such a material change as to cause completion of the
transactions contemplated hereby to be unreasonable.
19.7. GOVERNING LAW; NO THIRD PARTY RIGHTS. This Agreement, the other
Loan Documents and the Notes and the rights and obligations of the parties
hereunder and thereunder shall be governed by and construed and interpreted in
accordance with the internal laws of the State of Missouri applicable to
contracts made and to be performed wholly within such state. This Agreement is
solely for the benefit of the parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit, priority or interest
under, or because of the existence of, this Agreement.
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19.8. CAPTIONS. Section captions and the Table of Contents are for
convenience only and shall not affect the interpretation or construction of this
Agreement or the other Loan Documents.
19.9. COUNTERPART AND FACSIMILE EXECUTION. This Agreement may be
executed by the parties hereto on any number of separate counterparts, and all
such counterparts taken together shall constitute one and the same instrument.
It shall not be necessary in making proof of this Agreement to produce or
account for more than one counterpart signed by the party to be charged. A
counterpart of this Agreement or a signature page to this Agreement transmitted
by facsimile machine or telecopier and showing a signature shall have the same
binding effect as an original bearing an original signature. At the request of
any party, the original page or document transmitted by facsimile or telecopy
shall be delivered to the requesting party, or the individuals whose signatures
were shown thereon shall execute another original counterpart thereof. No party
may raise the use of a facsimile machine or telecopier or the fact that any
signature was transmitted through the use of a facsimile or telecopier machine
as a defense to the enforcement of the document.
19.10. SINGULAR AND PLURAL FORMS. All definitions herein shall be
equally applicable to both the singular and the plural forms of the terms
defined.
19.11. REFERENCES. The words hereof, herein, hereby, hereunder, and
words of similar import refer to this Agreement as a whole, including its
Exhibits and Appendices, and not to any particular provision of this Agreement.
The word Section or section and Page or page refer to a section or page,
respectively, of this Agreement unless it expressly refers to something else.
19.12. NO OTHER AGREEMENTS. There are no other agreements between
Agent, Lenders, Borrower and Guarantor, oral or written, concerning the subject
matter of the Loan Documents, and all prior agreements concerning the same
subject matter, including the Commitment Letter, are merged into the Loan
Documents and thereby extinguished.
19.13. INCORPORATION BY REFERENCE. All of the terms of the other Loan
Documents are incorporated in and made a part of this Agreement by this
reference.
19.14. STATUTORY NOTICE. The following notice is given pursuant to
Section 432.045 of the Missouri Revised Statutes; nothing contained in such
notice shall be deemed to limit or modify the terms of the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE
REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of November 22, 1994.
"BORROWERS":
X'XXXXXXXX INDUSTRIES, INC. X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ X. X. Xxxxxx By: /s/ X. X. Xxxxxx
Vice President-Finance Vice President-Finance
Notice Address: Notice Address:
X'Xxxxxxxx Industries, Inc. X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Xxxxx, XX 00000-0000 Xxxxx, XX 00000-0000
Attention: Chief Financial Officer Attention: Chief Financial Officer
FAX # 000-000-0000 FAX # 000-000-0000
TEL # 000-000-0000 TEL # 000-000-0000
with a copy to with a copy to:
X'Xxxxxxxx Industries, Inc. X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Xxxxx, XX 00000-0000 Xxxxx, XX 00000-0000
Attention: General Counsel Attention: General Counsel
FAX # 000-000-0000 FAX # 000-000-0000
TEL # 000-000-0000 TEL # 000-000-0000
"GUARANTOR"
X'XXXXXXXX INDUSTRIES-VIRGINIA, INC.
By: /s/ X. X. Xxxxxx
Vice President-Finance
Notice Address:
X'Xxxxxxxx Industries - Virginia, Inc.
0000 Xxxx Xxxxxx
Xxxxx, XX 00000-0000
FAX # 000-000-0000
TEL # 000-000-0000
with a copy to
X'Xxxxxxxx Industries - Virginia, Inc.
0000 Xxxx Xxxxxx
Xxxxx, XX 00000-0000
Attention: General Counsel
FAX # 000-000-0000
TEL # 000-000-0000
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"AGENT" and a "LENDER"
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Vice President
Notice Address:
The Boatmen's National Bank of St. Louis
One Boatmen's Plaza
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xx. Xxxxx, XX 00000-0000
FAX # 000-000-0000
TEL # 000-000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
Other "LENDERS"
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ Xxxxx X. Xxxxx
Senior Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx, X.X.
U.S. Corporate, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
FAX # 000-000-0000
TEL # 000-000-0000
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APPENDIX 1.1
GLOSSARY AND INDEX OF DEFINED TERMS
"Account": as to any Person, the right of such Person to payment for goods sold
or leased or for services rendered by such Person.
"Adjusted LIBO Rate" is defined in Section 3.3.
"Advance Request" is defined in Section 6.1.1.
"Advance Date" is defined in Section 6.1.1.
"Advance" is defined in Section 2.1.1.
"Affiliate": with respect to any Person, (a) any other Person who is a partner,
director, officer or stockholder of such Person; and (b) any other Person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person, and any partner, director, officer or stockholder of
such other Person described. For purposes of this Agreement, control of a
Person by another Person shall be deemed to exist if such other Person has the
power, directly or indirectly, either to (i) vote thirty percent (30%) or more
of the securities having the power to vote in an election of directors of such
Person, or (ii) direct the management of such Person, whether by contract or
otherwise and whether alone or in combination with others.
"Agent": The Boatmen's National Bank of St. Louis in its capacity as agent for
the Lenders.
"Aggregate Revolving Loan" is defined in Section 2.1.1.
"Aggregate Revolving Commitment" is defined in Section 2.1.2.
"Agreement" is defined on page 1.
"Alternate Base Rate" is defined in Section 3.2.
"Alternate Base Rate Advance": any Advance bearing interest at the Alternate
Base Rate.
"Alternate Base Rate Tranche": any Tranche that bears interest at the
Alternate Base Rate.
"Applicable Lending Office" is defined in Section 1.3.
"Boatmen's" is defined on page 1.
"Borrower" is defined in Section 1.2.
"Borrowing Officer" means an officer of Borrower duly authorized on behalf of
Borrower to request Advances under this Agreement.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the laws of either
the United States or the State of Missouri.
"Capital Lease": any lease that has been or should be capitalized under GAAP.
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"Charter Documents": the articles or certificate of incorporation and bylaws of
a corporation; the certificate of limited partnership and partnership agreement
of a limited partnership; the partnership agreement of a general partnership; or
the indenture of a trust.
"Code": the Internal Revenue Code of 1986, as amended from time to time, and all
regulations thereunder of the IRS.
"Commercial LC Fee" is defined in 4.3.
"Commitments": the Aggregate Revolving Commitment and the Letter of Credit
Commitment.
"Contract": any contract, note, bond, indenture, deed, mortgage, deed of trust,
security agreement, pledge hypothecation agreement, assignment, or other
agreement or undertaking or any security.
"Corporate Base Rate" is defined in Section 3.2.
"Covered Person" is defined in Section 1.4.
"Default": any of the events listed in Section 16.1 of this Agreement, without
giving effect to any requirement for the giving of notice, for the lapse of
time, or both, or for the happening of any other condition, event or act.
"Disclosure Schedule" is defined in Section 11.
"Discretion" is defined in Section 1.6.
"DOL": the United States Department of Labor.
"Dollars" and the sign "$": lawful money of the United States.
"EBITDA" is defined in Section 15.1.
"Effective Date" is defined on page 1.
"Employment Law": ERISA, the Occupational Safety and Health Act, the Fair Labor
Standards Act, or any other Material Law pertaining to the terms or conditions
of labor or safety in the workplace.
"Encumbrance": as to any item of real or personal property, any easement,
right-of-way, license, condition, or restrictive covenant, or zoning or similar
restriction, that is not a Security Interest but is enforceable by any Person
other than the record owner of such property.
"Environmental Law": the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, the Clean
Water Act, the Clean Air Act, or any other Material Law pertaining to
environmental quality or remediation of Hazardous Material.
"EPA": the United States Environmental Protection Agency.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended from
time to time.
"Event of Default": any of the events listed in Section 16.1 of this Agreement
as to which any requirement for the giving of notice, for the lapse of time, or
both, or for the happening of any further condition, event or act has been
satisfied.
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"Facility Fee" is defined in Section 4.1.
"Financial Statements": financial statements of Borrower that are furnished to
Lender as required in Section 13.12 of this Agreement.
"FRB": the Board of Governors of the Federal Reserve System and any successor
thereto or to the functions thereof.
"Funded Debt" is defined in Section 15.1.
"GAAP": those generally accepted accounting principles set forth in Statements
of the Financial Accounting Standards Board and in Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants or
which have other substantial authoritative support in the United States and are
applicable in the circumstances, as applied on a consistent basis.
"Governmental Authority": the federal government of the United States; the
government of any foreign country that is recognized by the United States or is
a member of the United Nations; any state of the United States; any local
government or municipality within the territory or under the jurisdiction of
any of the foregoing; any department, agency, division, or instrumentality of
any of the foregoing; and any court whose orders or judgements are enforceable
by or within the territory of any of the foregoing.
"Guaranty" is defined in Section 8.
"Hazardous Material": any hazardous substance as defined in the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Sections 9601 et seq.
"Holdings" is defined on page 1.
"Indebtedness": as to any Person at any particular date, any contractual
obligation enforceable against such Person (i) to repay borrowed money; (ii) to
pay the deferred purchase price of property or services; (iii) to make payments
or reimbursements with respect to bank acceptances or to a factor; (iv) to make
payments or reimbursements with respect to letters of credit or drawings
thereunder; (v) with respect to which there is any Security Interest in any
property of such Person; (vi) to make any payment or contribution to a
Multi-Employer Plan; (vii) that is evidenced by a note, bond, debenture or
similar instrument; (viii) under any conditional sale agreement or title
retention agreement; or (ix) to pay interest or fees with respect to any of the
foregoing.
"Indemnified Parties" is defined in Section 18.6.
"Indemnified Liabilities" is defined in Section 18.6.
"Indirect Obligation": as to any Person, (a) any guaranty by such Person of any
Obligation of another Person; (b) any Security Interest in any property of such
Person that secures any Obligation of another Person, (b) any enforceable
contractual requirement that such Person (i) purchase an Obligation of another
Person or any property that is security for such Obligation, (ii) advance or
contribute funds to another Person for the payment of an Obligation of such
other Person or to maintain the working capital, net worth or solvency of such
other Person as required in any documents evidencing an Obligation of such other
Person, (iii) purchase property, securities or services from another Person for
the purpose of assuring the beneficiary of any Obligation of such other Person
that such other Person has the ability to timely pay or discharge such
Obligation, or (iv) grant a Security Interest in any property of such Person to
secure any Obligation of another Person; and (c) any other contractual
requirement enforceable against such Person that has the same substantive effect
as any of the foregoing. The term "Indirect Obligation" does not, however,
include the indorsement by a Person of instruments for deposit or collection in
the ordinary course of business or the liability of a general partner of a
partnership for Obligations of such partnership. The amount of any Indirect
Obligation of a
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Person shall be deemed to be the stated or determinable amount of the Obligation
in respect of which such Indirect Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"Industries" is defined on page 1.
"Insurance/Condemnation Proceeds": insurance proceeds payable as a consequence
of damage to or destruction of any of the Collateral and proceeds payable as a
consequence of condemnation or sale in lieu of condemnation of any of the
Collateral.
"Interest Period" is defined in Section 3.4.
"Investment": (a) a loan or advance of money or property to a Person, (b) stock
or other equity interest in a Person, (c) a debt instrument issued by a Person,
whether or not convertible to stock or other equity interest in such Person, or
(d) any other interest in or rights with respect to a Person which include, in
whole or in part, a right to share, with or without conditions or restrictions,
some or all of the revenues or net income of such Person.
"IRB Letter of Credit" is defined in Section 2.2.2.
"IRB LC Fee" is defined in Section 4.4.
"Law": any statute, rule, regulation, order, judgment, award or decree of any
Governmental Authority.
"Lender": either of The Boatmen's National Bank of St. Louis or Wachovia Bank
of Georgia, N.A.
"Lenders" is defined on page 1.
"Letter of Credit" is defined in Section 2.2.
"Letter of Credit Commitment" is defined in Section 2.2.
"Letter of Credit Exposure": the undrawn amount of all outstanding Letters of
Credit plus all amounts drawn on such Letters of Credit and not yet reimbursed
to Agent for the account of Lenders.
"LIBO Rate" is defined in Section 3.3.1.
"LIBO Increment" is defined in Section 3.3.
"LIBOR Tranche": any Tranche that bears interest at the Adjusted LIBO Rate.
"Loan Documents": this Agreement, the Notes, the Guaranty and all other
agreements, certificates, documents, instruments and other writings executed in
connection herewith.
"Loan Obligations": all of Borrower's Indebtedness owing to Lenders arising out
of this Agreement, the Notes or the Guaranty and the other Loan Documents,
whether as principal, interest, fees or otherwise, all reimbursement obligations
of Borrower to Lenders with respect to Letter of Credit Exposure, and all other
obligations (including but not limited to obligations for the payment of money)
and liabilities of Borrower to Lenders arising out of this Agreement, the Notes
or the Guaranty (including but not limited to all extensions, renewals,
modifications, rearrangements, restructures, replacements and refinancings of
the foregoing, whether or not the same involve modifications to interest rates
or other payment terms), whether now existing or hereafter created, including
but not
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limited to the obligation of Borrower to repay future advances by Lenders,
whether or not made pursuant to commitment and whether or not presently
contemplated by Borrower and Lenders in the Loan Documents.
"Majority Lenders": any Lenders holding in the aggregate at least 51% of the sum
of the Commitments.
"Material Agreement": as to any Person, any Contract to which such Person is a
party or by which such Person is bound which, if violated or breached, would
have a Material Adverse Effect.
"Material Obligation": as to any Person, an Obligation of such Person which if
not fully and timely paid or performed would have a Material Adverse Effect.
"Material Adverse Effect": with respect to any event or occurrence of whatever
nature (including any adverse determination in any litigation, arbitration,
investigation or proceeding), a material adverse effect on the business,
operations, revenues, financial condition or property of Holdings and its
Subsidiaries taken as a whole, or the ability of Holdings and its Subsidiaries
to timely pay or perform their Obligations generally, or the ability of Holdings
and its Subsidiaries to pay or perform any of their Obligations to Lenders.
"Material License": (i) as to any Covered Person, any license, permit or consent
from a Governmental Authority or other Person and any registration and filing
with a Governmental Authority or other Person which if not obtained, held or
made by such Covered Person would have a Material Adverse Effect and (ii) as to
any Person who is a party to this Agreement or any of the other Loan Documents,
any license, permit or consent from a Governmental Authority or other Person and
any registration or filing with a Governmental Authority or other Person that is
necessary for the execution or performance by such party, or the validity or
enforceability against such party, of this Agreement or such other Loan
Document.
"Material Law": any Law whose violation by a Person would have a Material
Adverse Effect.
"Material Proceeding": any litigation, investigation or other proceeding by or
before any Governmental Authority which, if adversely determined, would be
reasonably likely to have a Material Adverse Effect.
"Maturity": as to any Indebtedness, the time when it becomes payable in full,
whether at a regularly scheduled time, because of acceleration or otherwise.
"Maximum Available Amount" is defined in Section 2.1.2.
"Multi-employer Plan": a Pension Benefit Plan which is a multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
"New Manufacturing Facility": the proposed third manufacturing facility
currently under construction in or near Cedar City, Utah.
"Note" is defined in Section 2.1.1.
"Notes" is defined in Section 2.1.1.
"Notice of Conversion/Continuation" is defined in Section 3.5.
"X'Xxxxxxxx - Virginia" is defined on page 1.
"Obligation": as to any Person, any Indebtedness of such Person, any guaranty by
such Person of any Indebtedness of another Person, and any contractual
requirement enforceable against such Person that does not constitute
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Indebtedness of such Person or a guaranty by such Person but which would involve
the expenditure of money by such Person if complied with or enforced.
"Operating Lease": any lease that is not a Capital Lease.
"Original Loan Agreement" is defined on page 1.
"PBGC": the Pension Benefit Guaranty Association.
"Pension Benefit Plan": any pension or profit-sharing plan which is covered by
Title I of ERISA and all other benefit plans and in respect of which a Covered
Person or a Commonly Controlled Entity of such Covered Person is an "employer"
as defined in Section 3(5) of ERISA.
"Permitted Guaranties" is defined in Section 14.2.12.
"Permitted Indebtedness" is defined in Section 14.2.
"Permitted Indirect Obligations" is defined in Section 14.3.
"Permitted Investments" is defined in Section 14.1.
"Permitted Security Interests" is defined in Section 14.4.
"Person": any individual, partnership, corporation, trust, unincorporated
association, joint venture, limited liability company, Governmental Authority,
or other organization in any form that has the legal capacity to xxx or be sued.
If the context so implies or requires, the term Person includes Borrower.
"Prorata Share": each Lender's percentage share of each Advance and of the
Aggregate Revolving Commitment, as applicable.
"Regulation D", "Regulation G", and Regulation U": respectively, Regulation D
issued by the FRB, Regulation G issued by the FRB, and Regulation U issued by
the FRB.
"Reportable Event": a reportable event as defined in Title IV of ERISA or the
regulations thereunder.
"Responsible Officer": as to any Person that is not an individual, partnership
or trust, the Chairman of the Board of Directors, the President, the chief
executive officer, the chief operating officer, the chief financial officer, the
Treasurer, any Assistant to the Treasurer, or any Vice President in charge of a
principal business unit; as to any partnership, any individual who is a general
partner thereof or any individual who has general management or administrative
authority over all or any principal unit of the partnership's business; and as
to any trust, any individual who is a trustee.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Commitment" is defined in Section 2.1.2.
"Security Interest": as to any item of tangible or intangible property, any
interest therein or right with respect thereto that secures an Obligation or
Indirect Obligation, whether such interest or right is created under a Contract,
or by operation of law or statute (such as but not limited to a statutory lien
for work or materials), or as a result of a judgment, or which arises under any
form of preferential or title retention agreement or arrangement (including but
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not limited to a conditional sale agreement or a lease) that has substantially
the same economic effect as any of the foregoing.
"Subsidiary": as to any Person, a corporation with respect to which more than
50% of the outstanding shares of stock of each class having ordinary voting
power (other than stock having such power only by reason of the happening of a
contingency) is at the time owned by such Person or by one or more Subsidiaries
of such Person.
"Tandy" is defined in Section 2.2.2.
"Tangible Assets" is defined in Section 15.1.
"Tangible Net Worth" is defined in Section 15.1.
"Tax Sharing Agreement": the Tax Sharing and Tax Benefit Reimbursement Agreement
dated February 1, 1994 among Tandy Corporation, TE Electronics Inc. and
Holdings, as described in the prospectus dated January 26, 1994 for the initial
public offering by TE Electronics Inc. of all of its shares of common stock in
Holdings, a copy of which has been previously furnished to Lenders.
"Texas Commerce" is defined on page 1.
"this Agreement": this document (including every document that is stated herein
to be an appendix, exhibit or schedule hereto, whether or not physically
attached to this document), as amended from time to time.
"Total Capitalization" is defined in Section 14.2.2.
"Tranche" is defined in Section 3.1.
"Triggering Event" is defined in Section 18.6.
"UCC": the Uniform Commercial Code as in effect from time to time in the State
of Missouri or such other similar statute as in effect from time to time in
Missouri or any other appropriate jurisdiction.
"Ultimate Revolving Maturity Date" is defined in Section 2.1.1.
"United States": when used in a geographical sense, all the states of the United
States of America and the District of Columbia; and when used in a legal
jurisdictional sense, the government of the country that is the United States of
America.
"Virginia Industrial Revenue Bonds" is defined in Section 2.2.2.
"Wachovia" is defined on page 1.
"Welfare Benefit Plan": any plan described by Section 3(1) of ERISA.
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