SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Commission file Number 0-27618
_______
Date of Report
(Date of earliest event reported) November 12, 1996
_________________
COLUMBUS McKINNON CORPORATION
_________________________________________________________________
(Exact name of registrant as specified in its charter)
NEW YORK 16-0547600
________________________________ _________________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
140 JOHN JAMES AUDUBON PKWY., AMHERST, NY 14228-1197
_________________________________________________________________
(Address of principal executive offices) (Zip Code)
(Registrant's telephone number,
including area code) (716) 689-5400
______________
NOT APPLICABLE
________________________________________________________________
(Former name, former address and former fiscal year,
if changed since last report)
<PAGE>
Item 5. Other Events.
Columbus McKinnon Corporation ("Parent"), through its
majority-owned subsidiary, Spreckels Industries, Inc., now known
as Yale Industries, Inc. (the "Company") intends to commence an
offer to purchase for cash, at a price equal to approximately
108.125% of the outstanding principal amount, plus accrued
interest, for all $70 million of the Company's 11-1/2% Senior
Secured Notes due 2000 (the "Notes"). The Company anticipates
commencing the tender offer (the "Tender Offer") on or about
November 15, 1996.
Consummation of the Tender Offer is conditioned on, among
other things, the Company's receipt of tenders of Notes
constituting a majority in aggregate principal amount of the
outstanding Notes and the consent of the senior lenders to
Parent.
The consummation of the Tender Offer is also conditioned
upon receipt by the Company of consents from the holders of a
majority in aggregate principal amount of the outstanding Notes
to eliminate substantially all of the restrictive covenants and
delete certain event of default provisions of the Indenture
pursuant to which the Notes were issued.
Item 7. Exhibits.
(2) Credit Agreement among Parent, Fleet Bank, as
Administrative Agent, and the Banks, Financial Institutions and
other Institutional Lenders named therein dated as of October 16,
1996.
(99) Text of press release dated November 12, 1996
issued by the Parent in connection with the above-described
transaction.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on behalf of the undersigned hereunto duly authorized.
COLUMBUS McKINNON CORPORATION
Date: November 13, 1996 By/s/ Robert L. Montgomery, Jr.
Robert L. Montgomery, Jr.
Executive Vice President and
Chief Financial Officer
<PAGE>
$325,000,000
CREDIT AGREEMENT
Dated as of October 16, 1996
among
COLUMBUS MCKINNON CORPORATION,
as Borrower,
THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER INSTITUTIONAL LENDERS NAMED HEREIN,
as Initial Lenders,
and
FLEET BANK,
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . .1
SECTION 1.01. Certain Defined Terms . . . . . . . . .1
SECTION 1.02. Computation of Time Periods . . . . . 25
SECTION 1.03. Accounting Terms. . . . . . . . . . . 25
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF
CREDIT . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.01. The Advances. . . . . . . . . . . . . 25
(a) The Term A Advances . . . . . . . . . . . . . . 25
(b) The Term B Advances . . . . . . . . . . . . . . 26
(c) The Working Capital Advances. . . . . . . . . . 26
(d) The Swing Line Advances . . . . . . . . . . . . 26
(e) Letters of Credit . . . . . . . . . . . . . . . 27
(f) Relating to Both the Term A Advances and Term B
Advances. . . . . . . . . . . . . . . . . . . . 27
SECTION 2.02. Making the Advances . . . . . . . . . 27
SECTION 2.03. Issuance of and Drawings and
Reimbursement Under Letters of
Credit . . . . . . . . . . . . . . . 30
(a) Request for Issuance. . . . . . . . . . . . . . 30
(b) Letter of Credit Reports. . . . . . . . . . . . 30
(c) Drawing and Reimbursement . . . . . . . . . . . 31
(d) Failure to Make Letter of Credit Advances . . . 32
SECTION 2.04. Repayment of Advances . . . . . . . . 32
(a) Term A Advances . . . . . . . . . . . . . . . . 32
(b) Term B Advances . . . . . . . . . . . . . . . . 32
(c) Working Capital Advances. . . . . . . . . . . . 33
(d) Swing Line Advances . . . . . . . . . . . . . . 33
(e) Letter of Credit Advances . . . . . . . . . . . 33
SECTION 2.05. Termination or Reduction of the
Commitments . . . . . . . . . . . . . . . . . . 34
(a) Optional. . . . . . . . . . . . . . . . . . . . 34
(b) Mandatory . . . . . . . . . . . . . . . . . . . 35
SECTION 2.06. Prepayments . . . . . . . . . . . . . 35
(a) Optional. . . . . . . . . . . . . . . . . . . . 35
(b) Mandatory . . . . . . . . . . . . . . . . . . . 36
(c) Application of Prepayments to the Term A Facility
and the Term B Facility . . . . . . . . . . . . 37
SECTION 2.07. Interest. . . . . . . . . . . . . . . 38
(a) Scheduled Interest. . . . . . . . . . . . . . . 38
(i) Prime Rate Advances. . . . . . . . . . . . 38
(ii) Eurodollar Rate Advances . . . . . . . . . 38
(b) Default Interest. . . . . . . . . . . . . . . . 38
(c) Notice of Interest Rate . . . . . . . . . . . . 38
SECTION 2.08. Fees. . . . . . . . . . . . . . . . . 38
(a) Working Capital Commitment Fee. . . . . . . . . 38
(b) Term A Commitment Fee.. . . . . . . . . . . . . 39
(c) Term B Commitment Fee . . . . . . . . . . . . . 39
(d) Letter of Credit Fees . . . . . . . . . . . . . 39
(e) Administrative Agent's Fees . . . . . . . . . . 40
SECTION 2.09. Conversion of Advances. . . . . . . . 40
(a) Optional. . . . . . . . . . . . . . . . . . . . 40
(b) Mandatory . . . . . . . . . . . . . . . . . . . 40
<PAGE>
SECTION 2.10. Increased Costs, Etc. . . . . . . . . 40
SECTION 2.11. Payments and Computations . . . . . . 42
SECTION 2.12. Taxes . . . . . . . . . . . . . . . . 43
SECTION 2.13. Sharing of Payments, Etc. . . . . . . 45
SECTION 2.14. Use of Proceeds . . . . . . . . . . . 46
SECTION 2.15. Defaulting Lenders. . . . . . . . . . 46
SECTION 2.16. Regulation U and Regulation G . . . . 49
ARTICLE III
CONDITIONS OF LENDING. . . . . . . . . . . . . . . . 49
SECTION 3.01. Conditions Precedent to Initial
Extension of Credit . . . . . . . . . 49
SECTION 3.02. Conditions to Advances to be Made on the
Merger Date.. . . . . . . . . . . . . 55
SECTION 3.03. Conditions Precedent to Each Borrowing
and Issuance. . . . . . . . . . . . . 56
SECTION 3.04. Determinations Under Section 3.01 and
3.02. . . . . . . . . . . . . . . . . 57
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 57
SECTION 4.01. Representations and Warranties of the
Borrower. . . . . . . . . . . . . . . 57
ARTICLE V
COVENANTS OF THE BORROWER AND THE SUBSIDIARIES . . . 64
SECTION 5.01. Affirmative Covenants . . . . . . . . 64
(a) Compliance with Law . . . . . . . . . . . . . . 64
(b) Payment of Taxes, Etc . . . . . . . . . . . . . 64
(c) Compliance with Environmental Laws. . . . . . . 65
(d) Preparation of Environmental Reports. . . . . . 65
(e) Maintenance of Insurance. . . . . . . . . . . . 66
(f) Preservation of Corporate Existence, Etc. . . . 66
(g) Visitation Rights . . . . . . . . . . . . . . . 66
(h) Keeping of Books. . . . . . . . . . . . . . . . 67
(i) Maintenance of Properties, Etc. . . . . . . . . 67
(j) Compliance with Terms of Leaseholds . . . . . . 67
(k) Performance of Material Contracts . . . . . . . 67
(l) Transactions with Affiliates. . . . . . . . . . 67
(m) Agreement to Grant Additional Security. . . . . 67
(n) Interest Rate Protection. . . . . . . . . . . . 69
(o) Performance of Acquisition Documents. . . . . . 69
(p) Consummation of Merger. . . . . . . . . . . . . 70
(q) Cash Concentration Accounts . . . . . . . . . . 70
(r) Post Merger Transactions. . . . . . . . . . . . 70
SECTION 5.02. Negative Covenants. . . . . . . . . . 71
(a) Liens, Etc. . . . . . . . . . . . . . . . . . . 71
(b) Debt. . . . . . . . . . . . . . . . . . . . . . 72
(c) Lease Obligations . . . . . . . . . . . . . . . 73
(d) Fundamental Changes . . . . . . . . . . . . . . 73
(e) Sales, Etc. of Assets . . . . . . . . . . . . . 73
(f) Investments in Other Persons. . . . . . . . . . 74
(g) Dividends, Etc. . . . . . . . . . . . . . . . . 74
(h) Change in Nature of Business. . . . . . . . . . 75
(i) Charter Amendments. . . . . . . . . . . . . . . 75
(j) Accounting Changes. . . . . . . . . . . . . . . 75
(k) Prepayments, Etc. of Debt . . . . . . . . . . . 75
(l) Amendment, Etc. of Acquisition Documents. . . . 75
<PAGE>
(m) Amendment, Etc. of Material Contracts . . . . . 76
(n) Negative Pledge . . . . . . . . . . . . . . . . 76
(o) Partnerships, New Subsidiaries. . . . . . . . . 76
(p) Speculative Transactions. . . . . . . . . . . . 76
(q) Capital Expenditures. . . . . . . . . . . . . . 76
(r) Issuance of Stock . . . . . . . . . . . . . . . 76
SECTION 5.03. Reporting Requirements. . . . . . . . 77
(a) Default Notice. . . . . . . . . . . . . . . . . 77
(b) Monthly Financials. . . . . . . . . . . . . . . 77
(c) Quarterly Financials. . . . . . . . . . . . . . 77
(d) Annual Financials . . . . . . . . . . . . . . . 78
(e) Annual Forecasts. . . . . . . . . . . . . . . . 79
(f) ERISA Events and ERISA Reports. . . . . . . . . 79
(g) Plan Terminations . . . . . . . . . . . . . . . 79
(h) Actuarial Reports . . . . . . . . . . . . . . . 79
(i) Plan Annual Reports . . . . . . . . . . . . . . 79
(j) Annual Plan Summaries . . . . . . . . . . . . . 79
(k) Multiemployer Plan Notices. . . . . . . . . . . 79
(l) Litigation. . . . . . . . . . . . . . . . . . . 79
(m) Securities Reports. . . . . . . . . . . . . . . 80
(n) Creditor Reports. . . . . . . . . . . . . . . . 80
(o) Agreement Notices . . . . . . . . . . . . . . . 80
(p) Revenue Agent Reports . . . . . . . . . . . . . 80
(q) Environmental Conditions. . . . . . . . . . . . 80
(r) Real Property . . . . . . . . . . . . . . . . . 80
(s) Insurance . . . . . . . . . . . . . . . . . . . 81
(t) Borrowing Base Certificate. . . . . . . . . . . 81
(u) Management Letters. . . . . . . . . . . . . . . 81
(v) Other Information . . . . . . . . . . . . . . . 81
SECTION 5.04. Financial Covenants . . . . . . . . . 81
(a) Funded Debt to EBITDA Ratio . . . . . . . . . . 81
(b) Interest Coverage Ratio . . . . . . . . . . . . 81
(c) Fixed Charge Coverage Ratio . . . . . . . . . . 82
(d) Minimum Net Worth . . . . . . . . . . . . . . . 83
ARTICLE VI
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . 83
SECTION 6.01. Events of Default . . . . . . . . . . 83
SECTION 6.02. Actions in Respect of the Letters of
Credit upon Default . . . . . . . . . 86
ARTICLE VII
THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . 87
SECTION 7.01. Authorization and Action. . . . . . . 87
SECTION 7.02. Agent's Reliance, Etc . . . . . . . . 87
SECTION 7.03. Fleet and Affiliates. . . . . . . . . 87
SECTION 7.04. Lender Party Credit Decision. . . . . 88
SECTION 7.05. Indemnification . . . . . . . . . . . 88
SECTION 7.06. Successor Administrative Agents . . . 89
ARTICLE VIII
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 90
SECTION 8.01. Amendments, Etc . . . . . . . . . . . 90
SECTION 8.02. Notices Etc . . . . . . . . . . . . . 91
SECTION 8.03. No Waiver; Remedies . . . . . . . . . 92
SECTION 8.04. Costs and Expenses. . . . . . . . . . 92
SECTION 8.05. Right of Set-off. . . . . . . . . . . 94
SECTION 8.06. Binding Effect. . . . . . . . . . . . 94
<PAGE>
SECTION 8.07. Assignments and Participations. . . . 94
SECTION 8.08. Execution in Counterparts . . . . . . 97
SECTION 8.09. No Liability of the Issuing Bank. . . 97
SECTION 8.10. Confidentiality . . . . . . . . . . . 98
SECTION 8.11. JURISDICTION, ETC . . . . . . . . . . 98
SECTION 8.12. GOVERNING LAW . . . . . . . . . . . . 99
SECTION 8.13. WAIVER OF JURY TRIAL. . . . . . . . . 99
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Borrowing Base Certificate
Exhibit C - Form of Term A Note
Exhibit D - Form of Term B Note
Exhibit E - Form of Working Capital Note
Exhibit F - Form of Notice of Borrowing
Exhibit G - Form of Security Agreement
Exhibit H - Form of Intellectual Property Security Agreement
Exhibit I - Form of Guaranty
SCHEDULES
Schedule I Commitments and Applicable Lending
Offices
Schedule II Existing Letters of Credit
Schedule 3.01(e) Disclosed Litigation
Schedule 3.01(a)(viii) States in which Loan Parties are
Qualified to do Business
Schedule 4.01(b) Subsidiaries
Schedule 4.01(d) Required Authorizations and Approvals
Schedule 4.01(k) Plans; Multiemployer Plans; Welfare
Plans
Schedule 4.01(o) Environmental Assessment Reports
Schedule 4.01(q) Certain Agreements
Schedule 4.01(r) Pledged Foreign Subsidiaries
Schedule 4.01(t) Open Tax Years
Schedule 4.01(aa) Existing Debt (other than Surviving
Debt)
Schedule 4.01(bb) Surviving Debt
Schedule 4.01(cc) Owned Real Estate
Schedule 4.01(dd) Leased Real Estate
Schedule 4.01(ee) Material Contracts
Schedule 4.01(ff) Investments
Schedule 4.01(gg) Intellectual Property
Schedule 5.02(a)(iii) Liens
Schedule 5.02(f)(i) Investments in Subsidiaries
Schedule 5.02(f)(vii) Existing Investments
Schedule 5.02(r) Existing Issuances, Etc. of Stock
<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of October __, 1996, by and
among COLUMBUS MCKINNON CORPORATION, a New York corporation (the
"Borrower"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the
Initial Lenders (the "Initial Lenders"), FLEET BANK, as Initial
Issuing Bank (the "Initial Issuing Bank"), FLEET BANK, as the
Swing Line Bank (as hereinafter defined), and FLEET BANK, as
administrative agent (together with any successor appointed
pursuant to Article VII, the "Administrative Agent") for the
Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) Pursuant to an Agreement and Plan of Merger, dated
August 24, 1996, by and among the Borrower, L Acquisition
Corporation, a wholly-owned subsidiary of the Borrower ("L
Acquisition"), and Spreckels Industries, Inc. (known as Yale
International, Inc.) (the "Company"), the Borrower has agreed to
acquire the Company through the purchase, by L Acquisition, of
(i) the outstanding Shares (as hereinafter defined) of the
Company and (ii) the outstanding Warrants (as hereinafter
defined) of the Company, and the subsequent merger of L
Acquisition with and into the Company.
(2) The Borrower has requested that the Lender Parties (as
hereinafter defined) make loans to the Borrower and issue letters
of credit having an aggregate principal and face amount at any
one time outstanding of up to Three Hundred Twenty Five Million
Dollars ($325,000,000), to be used by the Borrower (i) to pay the
purchase price for certain of the Shares and the Warrants, (ii)
to repay certain existing indebtedness of the Company, (iii) to
pay transaction fees and expenses incurred in connection with the
acquisition, and (iv) to provide working capital for the Borrower
and its Subsidiaries, and the Lender Parties have agreed to make
such loans and issue such letters of credit all on and subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"Acquisition" means the acquisition by L Acquisition of the
Company by means of the Tender Offer and the Merger as provided
in the Merger Agreement.
<PAGE>
"Acquisition Documents" means the Tender Offer Documents,
the Merger Agreement, and all other documents and information
sent by the Borrower or any of its Subsidiaries or the Company to
the stockholders of the Company or filed with the Securities and
Exchange Commission in connection with the Tender Offer or the
Merger.
"Additional Collateral Documents" has the meaning specified
in Section 5.01(m).
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
Fleet at its office at Fleet Bank, 10 Fountain Plaza, Buffalo,
New York 14202, Account No. 1983580, Attention: Loan
Administration.
"Advance" means a Term A Advance, a Term B Advance, a
Working Capital Advance, a Swing Line Advance or a Letter of
Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under
common control with such Person or is a director or officer of
such Person. For purposes of this definition, the term "control"
(including the terms "controlling," "controlled by" and "under
common control with") of a Person means the possession, direct or
indirect, of the power to vote 50% or more of the Voting Stock of
such Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Applicable Lending Office" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in the
case of a Prime Rate Advance and such Lender Party's Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means at any time and from time to time
a percentage per annum determined by reference to the ratio of
Funded Debt to EBITDA for the four full fiscal quarters preceding
such determination, as set forth below:
Applicable Margin for Term A Advances
and Working Capital Advances
Applicable Applicable
Margin for Margin for
Prime Rate Eurodollar
Ratio of Funded Debt/EBITDA Advances Advances
_____________________________ __________ __________
Equal to or greater than 3.75 1.25% 2.50%
Equal to or greater than 3.00 1.00% 2.25%
less than 3.75
<PAGE>
Equal to or greater than 2.25 .75% 2.00%
less than 3.00
Less than 2.25 .50% 1.75%
The Applicable Margin for a Term B Advance shall be 1.75% for a
Prime Rate Advance, and 3.00% for a Eurodollar Advance.
Notwithstanding the above schedule, prior to the delivery to the
Administrative Agent of the Borrower's Financial Statements for
its fiscal year ending March 31, 1997, the Applicable Margin for
a Term A Advance and a Working Capital Advance shall be 1.25% for
a Prime Rate Advance and 2.50% for a Eurodollar Advance.
All Swing Line Advances will be Prime Rate Advances, with a
margin equal to that of a Term A Advance or a Working Capital
Advance.
The Applicable Margin for each Prime Rate Advance and each
Eurodollar Rate Advance shall be determined by reference to the
Ratio of Funded Debt to EBITDA which shall be determined three
Business Days after the date on which the Administrative Agent
receives financial statements pursuant to Section 5.03(c) or (d)
and a certificate of the chief financial officer of the Borrower
demonstrating the Ratio of Funded Debt to EBITDA. If the
Borrower has not submitted to the Administrative Agent the
information described above as and when required under Section
5.03(c) or (d), as the case may be, the Applicable Margin shall
be as determined by the Administrative Agent for so long as such
information has not been received by the Administrative Agent.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender Party and an Eligible
Assignee, and accepted by the Administrative Agent, in accordance
with Section 8.07 and in substantially the form of Exhibit A
hereto.
"Available Amount" of any Letter of Credit means, at any
time, the maximum amount available to be drawn under such Letter
of Credit at such time (assuming compliance at such time with all
conditions to drawing).
"Bank Hedge Agreement" means any interest rate Hedge
Agreement required or permitted under Section 5.01(n) that is
entered into by and between the Borrower and any Lender Party.
"Borrower" has the meaning specified in the recital of
parties to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with Fleet Bank at its office at 10
Fountain Plaza, Buffalo, New York 14202, Account No. 7168306.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a
Working Capital Borrowing or a Swing Line Borrowing.
"Borrowing Base" on any date means the sum of (i) 85% of the
value of Eligible Receivables arising out of sales to account
debtors within the United States or Canada plus (ii) 60% of the
<PAGE>
net value of Eligible Inventory consisting of either finished
goods or raw materials plus (iii) 40% of the net value of
Eligible Inventory consisting of sub-assemblies plus (iv) 35% of
the net value of Eligible Inventory consisting of work-in-
process, in each case as set forth in the most recent Borrowing
Base Certificate delivered to the Administrative Agent pursuant
to the terms of this Agreement on or prior to such date;
provided, however, that, in the event, and only in the event,
that more than $55,000,000 of the Note Repurchase Sub-Facility is
drawn pursuant to Section 2.01(c), the Borrowing Base shall be
increased on a dollar for dollar basis for each dollar of
Borrowing under the Note Repurchase Sub-Facility above
$55,000,000 (for example, if an Advance of $65,000,000 is made
under the Note Repurchase Sub-Facility pursuant to Section
2.01(c), the Borrowing Base shall be increased by $10,000,000
pursuant to this proviso).
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit B hereto, duly certified by the
chief financial officer of the Borrower.
"Borrowing Base Deficiency" means, at any time, the failure
of the Borrowing Base at such time to equal or exceed the sum of
(i) the aggregate principal amount of the Working Capital
Advances, the Letter of Credit Advances and the Swing Line
Advances outstanding at such time plus (ii) the aggregate
Available Amount under all Letters of Credit outstanding at such
time.
"Business Day" means a day of the year on which banks are
not required or authorized by law to close in Buffalo, New York
and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London
interbank market.
"Capital Expenditures" means, for any Person for any period,
the sum of all expenditures made, directly or indirectly, by such
Person or any of its Subsidiaries during such period for
equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated
balance sheet of such Person.
"Capitalized Leases" means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized
leases.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries, free and clear
of all Liens other than Liens created under the Collateral
Documents: (i) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States having a
maturity of not greater than 360 days from the date of issuance
thereof, (ii) insured certificates of deposit of or time deposits
<PAGE>
having a maturity of not greater than 360 days from the date of
issuance thereof with any commercial bank that is a Lender Party
or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause
(iii), is organized under the laws of the United States or any
State thereof and has combined capital and surplus of at least $1
billion or (iii) commercial paper having a maturity of not
greater than 180 days from the date of issuance thereof in an
aggregate amount of no more than $2,500,000 per issuer
outstanding at any time, issued by any corporation organized
under the laws of any State of the United States and rated at
least "Prime-1" (or the then equivalent grade) by Moody's
Investors Service, Inc. or "A-1" (or the then equivalent grade)
by Standard & Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq., as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the
U.S. Environmental Protection Agency.
"Closing Date" means the date on which all of the conditions
precedent set forth in Section 3.01 to the Initial Extension of
Credit shall have been satisfied or waived.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is
intended to be subject to any Lien in favor of the Administrative
Agent for the benefit of the Secured Parties.
"Collateral Documents" means the Security Agreement, the
Intellectual Property Security Agreement and any other agreement
that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties,
including the Additional Collateral Documents delivered pursuant
to Section 5.01(m).
"Commitment" means a Term A Commitment, a Term B Commitment,
a Working Capital Commitment or a Letter of Credit Commitment.
"Commitment Percentage" means, as to any Lender, the
percentage of the aggregate Commitments constituted by such
Lender's Commitments.
"Company" has the meaning specified in the Preliminary
Statements.
"Confidential Information" means information that the
Borrower furnishes to the Administrative Agent or any Lender
Party in a writing designated as confidential, but does not
include any such information that is or becomes generally
available to the public other than as a result of a breach by the
Administrative Agent or any Lender Party of its obligations
hereunder or that is or becomes available to the Administrative
Agent or such Lender Party from a source other than the Borrower
that is not, to the best of the Administrative Agent's or such
<PAGE>
Lender Party's knowledge, acting in violation of a
confidentiality agreement with the Borrower; provided, further,
that any information described in Section 5.01(d) hereof shall be
deemed Confidential Information without reference to whether it
was provided by the Borrower to the Administrative Agent or was
independently generated by the Administrative Agent pursuant to
such Section.
"Consolidated" refers to the consolidation of accounts, in
accordance with GAAP, of the Borrower and all of its
Subsidiaries.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other
Type pursuant to Section 2.09 or 2.10.
"Current Assets" of any Person means all assets of such
Person that would, in accordance with GAAP, be classified as
current assets of a company conducting a business the same as or
similar to that of such Person, after deducting adequate reserves
in each case in which a reserve is proper in accordance with
GAAP.
"Current Liabilities" of any Person means (i) all Debt of
such Person, except Funded Debt, that by its terms is payable on
demand or matures within one year after the date of determination
(excluding any Debt renewable or extendible, at the option of
such Person, to a date more than one year from such date or
arising under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period
of more than one year from such date), (ii) all amounts of Funded
Debt of such Person required to be paid or prepaid within one
year after such date and (iii) all other items (including taxes
accrued as estimated) that in accordance with GAAP would be
classified as current liabilities of such Person.
"Debt" of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) all
Obligations of such Person for the deferred purchase price of
property or services, (iii) all Obligations of such Person
evidenced by notes, bonds, debentures or other similar
instruments, (iv) all Obligations of such Person created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or
sale of such property), (v) all Obligations of such Person as
lessee under Capitalized Leases, (vi) all Obligations, contingent
or otherwise, of such Person under acceptance, letter of credit
or similar facilities, (vii) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment
in respect of any capital stock of or other ownership or profit
interest in such Person or any other Person or any warrants,
rights or options to acquire such capital stock, (viii) all
Obligations of such Person in respect of Hedge Agreements, (ix)
all Debt of others referred to in clauses (i) through (viii)
above or clause (x) below guaranteed directly or indirectly in
<PAGE>
any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (w) to pay or
purchase such Debt or to advance or supply funds for the payment
or purchase of such Debt, (x) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment
of such Debt or to assure the holder of such Debt against loss,
(y) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such
services are rendered) or (z) otherwise to assure a creditor
against loss, and (x) all Debt referred to in clauses (i) through
(ix) above of another Person secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without
limitation, accounts, contract rights or inventory) owned by such
Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
"Default Lender" means, at any time, any Lender Party that,
at such time, (i) owes a Defaulted Advance or a Defaulted Amount
or (ii) shall take any action or be the subject of any action or
proceeding of a type described in Section 6.01(f).
"Defaulted Advance" means, with respect to any Lender Party
at any time, the portion of any Advance required to be made by
such Lender Party to the Borrower pursuant to Section 2.01 or
2.02 at or prior to such time which has not been made by such
Lender Party or by the Administrative Agent for the account of
such Lender Party pursuant to Section 2.02(e) as of such time.
In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.15(a), the remaining portion of
such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the
same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party
at any time, any amount required to be paid by such Lender Party
to the Administrative Agent or any other Lender Party hereunder
or under any other Loan Document at or prior to such time which
has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party
to (i) the Swing Line Bank pursuant to Section 2.02(b) to
purchase a portion of a Swing Line Advance made by the Swing Line
Bank, (ii) the Issuing Bank pursuant to Section 2.03(c) to
purchase a portion of a Letter of Credit Advance made by the
Issuing Bank, (iii) the Administrative Agent pursuant to Section
2.02(e) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of
such Lender Party, (iv) any other Lender Party pursuant to
Section 2.13 to purchase any participation in Advances owing to
such other Lender Party and (v) the Administrative Agent or the
Issuing Bank pursuant to Section 7.05 to reimburse the
Administrative Agent or the Issuing Bank for such Lender Party's
<PAGE>
ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as
provided therein. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or
under any other Loan Document on the same date as the Defaulted
Amount so deemed paid in part.
"Disclosed Litigation" has the meaning specified in Section
3.01(e).
"Disposal" means the discharge, deposit, injection, dumping,
spilling, leaking or placing of any solid waste or hazardous
waste, as those terms are defined by any applicable federal,
state, local or foreign law, into or on any land or water so that
such solid waste or hazardous waste or any constituents thereof
may enter the environment or be emitted into the air or
discharged into any waters, including ground waters.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender
Party, as the case may be, or such other office of such Lender
Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary organized under
the laws of the United States of America or any State thereof.
"EBITDA" means, for any period, (A) the sum, determined on a
Consolidated basis, of (i) net income (or net loss), (ii)
interest expense, (iii) income tax expense, (iv) depreciation
expense and (v) amortization expense, in each case of the
Borrower and its Subsidiaries determined in accordance with GAAP
for such period (excluding, in the case of the fiscal quarter in
which the consummation of the Acquisition occurs, any
restructuring charge taken by the Borrower and its Subsidiaries,
in respect of the Acquisition), plus (B) the pro forma effect on
EBITDA for such period of any acquisition made by the Borrower or
one of its Subsidiaries (such pro forma effect to be reasonably
acceptable to the Administrative Agent).
"Eligible Assignee" means with respect to any Facility
(other than the Letter of Credit Facility), (A) a Lender; (B) an
Affiliate of a Lender; and (C) subject to the prior approval of
the Administrative Agent and the Borrower, such approval not to
be unreasonably withheld or delayed, (i) a commercial bank
organized under the laws of the United States, or any State
thereof, and having total assets in excess of $500,000,000; (ii)
a savings and loan association or savings bank organized under
the laws of the United States, or any State thereof, and having
total assets in excess of $500,000,000; (iii) a commercial bank
organized under the laws of any other country that is a member of
the OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political
<PAGE>
subdivision of any such country, and having total assets in
excess of $500,000,000, so long as such bank is acting through a
branch or agency located in the United States; (iv) the central
bank of any country that is a member of the OECD; and (v) a
finance company, insurance company or other financial institution
or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its
business and having total assets in excess of $100,000,000;
and, with respect to the Letter of Credit Facility, a Person that
is an Eligible Assignee under subclause (i) or (iii) of clause
(C) of this definition and is approved by the Administrative
Agent and the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that no Loan Party or
Affiliate of a Loan Party shall qualify as an Eligible Assignee
under this definition.
"Eligible Inventory" means Inventory of the Borrower or any
Domestic or Canadian Subsidiary of the Borrower located in the
continental United States or Canada (minus any reserves
reasonably requested by Agent) as to which (i) the Borrower or a
Domestic or Canadian Subsidiary of the Borrower has acquired
title and (ii) the Borrower or a Domestic or Canadian Subsidiary
of the Borrower shall have furnished to Agent information
adequate for purposes of identification at times and in form and
substance as may be reasonably requested by Agent; provided, that
Inventory shall not constitute Eligible Inventory (i) if and when
the Borrower or such Domestic or Canadian Subsidiary sells it,
otherwise passes title thereto or consumes it, or (ii) to the
extent that it (w) is obsolete or not currently useable or
salable in the ordinary course of business, (x) is produced in
violation of the Fair Labor Standards Act and subject to the so-
called "hot goods" provision contained in Title 29, Section
215(a) (1) of the United States Code, (y) is Inventory in excess
of one year's supply or (z) is Inventory held for consumption by
the Borrower or a Subsidiary and not for sale in the ordinary
course of business. Any Inventory which is Eligible Inventory at
any time, but which subsequently fails to meet any of the
foregoing requirements, shall forthwith cease to be Eligible
Inventory until such time as it once again meets all of the
foregoing requirements.
"Eligible Receivables" means only such Receivables of the
Borrower or any Domestic or Canadian Subsidiary of the Borrower
as the Administrative Agent, in its reasonable judgment, shall
from time to time elect to consider Eligible Receivables for
purposes of this Agreement. The value of such Receivables shall
be determined by the Administrative Agent in its reasonable
judgment taking into consideration, among other factors, their
book value determined in accordance with GAAP. By way of example
only, and without limiting the discretion of the Administrative
Agent to consider any Receivables not to be Eligible Receivables,
the Administrative Agent may consider any of the following
classes of Receivables not to be Eligible Receivables:
(a) Receivables that do not arise out of sales of goods or
rendering of services in the ordinary course of business;
<PAGE>
(b) Receivables on terms other than those normal or
customary in the Borrower's or Domestic or Canadian Subsidiary's
business;
(c) Receivables owing from any Person that is an Affiliate
of the Borrower;
(d) Receivables more than 60 days past the date due;
(e) Receivables owing from any Person from which an
aggregate amount of more than 50% of the Receivables owing is
more than 60 days past the date due;
(f) Receivables owing from any Person that shall take or be
the subject of any action or proceeding of a type described in
Section 6.01(f);
(g) In the case of any account debtor that is also a
supplier or creditor of the Borrower or any Subsidiary or
Affiliate of the Borrower, all Receivables owing from such
account debtor, unless such Receivables exceed the aggregate
amounts owed by the Borrower and its Subsidiaries and Affiliates
to such supplier or creditor, in which event the amount of
Receivables in excess of the aggregate amounts owed to such
supplier or creditor will be eligible if they meet all other
eligibility criteria;
(h) Receivables representing any manufacturer's or
supplier's credits, discounts, incentive plans or similar
arrangements entitling the Borrower or any of its Subsidiaries or
Affiliates to discounts on future purchase therefrom;
(i) Receivables arising out of sales on a bill-and-hold,
guaranteed sale, sale-or-return, sale on approval or consignment
basis or subject to any right of return, set-off or charge-back;
(j) Receivables owing from an account debtor that is an
agency, department or instrumentality of the United States or any
State thereof unless the Borrower or the applicable Domestic or
Canadian Subsidiary shall have satisfied the requirements of the
Assignment of Claims Act of 1940, as amended, and any similar
State legislation and the Administrative Agent is satisfied as to
the absence of set-offs, counterclaims and other defenses on the
part of such account debtor;
(k) Receivables the full and timely payment of which the
Administrative Agent in its reasonable judgment, after
consultation with the Borrower, believes to be doubtful; and
(l) Receivables owing from any account debtor located
outside of the United States and Canada, unless backed by letters
of credit in form and substance reasonably satisfactory to the
Administrative Agent.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any
<PAGE>
way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to
public health and safety or the environment, including, without
limitation, (i) by any governmental or regulatory authority or
third party for enforcement, cleanup, Removal, Response, Remedial
or other actions or damages and (ii) by any governmental or
regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any international or transnational
law, federal, state, local or foreign statute, law, ordinance,
rule, regulation, code, order, writ, judgment, injunction, decree
or judicial or agency interpretation, policy or guidance relating
to pollution or protection of the environment or natural
resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal,
threatened release, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required
under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the controlled group of any Loan
Party, or under common control with any Loan Party, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (i) (y) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect
to any Plan unless the 30-day notice requirement with respect to
such event has been waived by the PBGC, or (z) the requirements
of subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA,
of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days;
(ii) the application for a minimum funding waiver with respect to
a Plan; (iii) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan under ERISA Section
4041(c), pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (iv) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (v) the
withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA;
(vi) the conditions for imposition of a lien under Section 302(f)
of ERISA shall have been met with respect to any Plan; (vii) the
adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or (viii)
<PAGE>
the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee
to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender Party, the office of such Lender Party specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which it
became a Lender Party (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender
Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing,
an interest rate per annum equal to the rate per annum obtained
by dividing (i) the rate per annum at which deposits in U.S.
dollars are offered to Fleet in London, England by prime banks in
the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an
amount substantially equal to Fleet's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such
Interest Period (or, if Fleet shall not have such a Eurodollar
Rate Advance, $1,000,000) and for a period equal to such Interest
Period by (ii) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest
Period for all Eurodollar Rate Advances comprising part of the
same Borrowing, the reserve percentage applicable two Business
Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement)
for a member bank of the Federal Reserve System in New York City
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category
of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section
6.01.
"Excess Cash Flow" means for any period the sum of (i)
EBITDA of the Borrower and its Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges deducted in
arriving at EBITDA plus (iii) if there was a net increase in
<PAGE>
Consolidated Current Liabilities of the Borrower and its
Subsidiaries during such period, the amount of such net increase
plus (iv) if there was a net decrease in Consolidated Current
Assets (excluding cash and Cash Equivalents) of the Borrower and
its Subsidiaries during such period the amount of such net
decrease less (v) the aggregate amount of mandatory prepayments
or repayments of principal made by the Borrower and its
Subsidiaries on any Funded Debt of the Borrower and its
Subsidiaries during such period less (vi) Capital Expenditures of
the Borrower and its Subsidiaries during such period less (vii)
the aggregate amount of all federal, state, local and foreign
taxes paid by the Borrower and its Subsidiaries during such
period less (viii) the aggregate amount of interest paid on any
Funded Debt of the Borrower and its Subsidiaries during such
period less (ix) the aggregate amount of all non-cash credits
included in arriving at such EBITDA less (x) if there was a net
decrease in Consolidated Current Liabilities of the Borrower and
its Subsidiaries during such period, the amount of such net
decrease less (xi) if there was a net increase in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Subsidiaries during such period the amount of
such increase less (xii) dividends paid by the Borrower to the
holders of its common stock during such period to the extent that
the Borrower is expressly permitted to pay such dividends under
this Agreement.
"Existing Debt" means Debt of the Borrower and its
Subsidiaries and the Company and its Subsidiaries outstanding
immediately before giving effect to the Acquisition.
"Existing Letters of Credit" means those certain existing
Letters of Credit issued by Fleet for the account of the Borrower
which are set forth on Schedule II hereto.
"Existing Marine Midland Letters of Credit" means those
certain existing letters of credit issued by Marine Midland in an
aggregate face amount of not more than $5,000,000 issued as
security for the Borrower's obligations under (A) that certain
Series Guaranty Agreement, dated November 1, 1993, by and between
the Borrower, as guarantor, and Fleet Trust Company, as trustee,
relating to that certain Master Indenture, dated as of November
1, 1993, by and between Town of Amherst Industrial Development
Agency, as the issuer, and Fleet Trust Company, as trustee, as
supplemented by that certain Series Supplemental Indenture, dated
November 1, 1993, and (B) that certain Series Guaranty Agreement,
dated November 1, 1993, by and between the Borrower, as
guarantor, and Fleet Trust Company, as trustee, relating to that
certain Master Indenture, dated November 1, 1993, by and between
the City of Cedar Rapids, Iowa, as the issuer, and Fleet Trust
Company, as trustee, as supplemented by that certain Series
Supplemental Indenture, dated November 1, 1993.
"Extraordinary Receipt" means any cash received by or paid
to or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds, pension
plan reversions, proceeds of insurance (other than proceeds of
business interruption insurance to the extent such proceeds
<PAGE>
constitute compensation for lost earnings), condemnation awards
(and payments in lieu thereof) and indemnity payments; provided,
however, that an Extraordinary Receipt shall not include cash
receipts received from proceeds of insurance, condemnation awards
(or payments in lieu thereof) or indemnity payments to the extent
that such proceeds, awards or payments (i) in respect of loss or
damage to equipment, fixed assets or real property, are applied
(or in respect of which expenditures were previously incurred) to
replace or repair the equipment, fixed assets or real property in
respect of which such proceeds, awards or payments were received
in accordance with the terms of the Loan Documents, so long as
(A) such application is made within ninety (90) days after such
Person's receipt of such proceeds, awards or payments and (B)
such proceeds, awards or payments are received by such Person
within fifteen (15) months after the occurrence of such damage or
loss; or (ii) are received by any Person in respect of any third
party claim against such Person and applied to pay (or to
reimburse such Person for its prior payment of) such claim and
the costs and expenses of such Person with respect thereto.
"Facility" means the Term A Facility, the Term B Facility,
the Working Capital Facility, the Letter of Credit Facility or
the Swing Line Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average of
the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on March 31 in any calendar
year.
"Fleet" means Fleet Bank in its capacity as a Lender or
issuer of Letters of Credit hereunder.
"Foreign Subsidiary" means any Subsidiary organized under
the laws of any jurisdiction other than the United States of
America or any State thereof.
"Funded Debt" means, with respect to the Borrower, the
Advances, and with respect to the Borrower and any other Person,
all other Debt of such Person that by its terms matures more than
one year after the date of determination or matures within one
year from such date but is renewable or extendible, at the option
of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period
of more than one year after such date, including the current
portion of all such Debt.
"GAAP" has the meaning specified in Section 1.03.
<PAGE>
"Guaranteed Obligations" has the meaning specified in the
Guaranty.
"Guarantors" means (i) each Significant Subsidiary of the
Borrower, (ii) upon consummation of the Acquisition, the Company
and each Significant Subsidiary of the Company (but only to the
extent the execution and delivery thereof would not violate the
terms of any agreements of the Company, including the Senior
Notes, in effect on the Merger Date), and (iii) each Person which
shall have executed and delivered or become a party to a Guaranty
hereunder.
"Guaranty" has the meaning specified Section 3.01.
"Hazardous Materials" means (i) petroleum or petroleum
products, by-products or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (ii) any other chemicals, materials
or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental
Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other
similar agreements.
"Hedge Bank" means any Lender Party in its capacity as a
party to a Bank Hedge Agreement.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means the information memorandum,
dated September 1996, delivered by the Administrative Agent to
the Lenders.
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of
Credit.
"Initial Issuing Bank" means Fleet.
"Initial Lenders" has the meaning specified in the recital
of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in
Section 4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" has the meaning
specified in Section 3.01.
"Interest Expense" means, with respect to any Person for any
period, interest expense on all Debt of such Person for such
period net of interest income for such period, whether paid or
accrued, determined on a Consolidated basis for such Person and
<PAGE>
its Subsidiaries and in accordance with GAAP, and including,
without limitation, (i) in the case of the Borrower, interest
expense in respect of Debt resulting from Advances, (ii) the
interest component of all obligations under Capitalized Leases,
(iii) commissions, discounts and other fees and charges payable
in connection with letters of credit (including, without
limitation, Letters of Credit), (iv) the net payment, if any,
payable in connection with Hedge Agreements less the net credit,
if any, received in connection with Hedge Agreements and (v) all
fees paid by the Borrower pursuant to Section 2.08(a).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on
the date of such Eurodollar Rate Advance or the date of the
Conversion of any Prime Rate Advance into such Eurodollar Rate
Advance, and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below.
The duration of each such Interest Period shall be one, two,
three or six months, as the Borrower may, upon notice received by
the Administrative Agent not later than 11:00 A.M. (Buffalo, New
York time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) The Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Prime Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for
such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and
payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) Whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that,
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next
preceding Business Day; and
(d) Whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
<PAGE>
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Inventory" of any Person means all of such Person's now
owned and hereafter acquired inventory, goods, merchandise, and
other personal property, wherever located, to be furnished under
any contract of service or held for sale or lease, all returned
goods, raw materials, other materials and supplies of any kind,
nature or description which are or might be consumed in such
Person's business or used in connection with the packing,
shipping, advertising, selling or finishing of such goods,
merchandise and such other personal property, and all documents
of title or other documents representing them.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or
other ownership or profit interest, warrants, rights, options,
obligations or other securities of such Person, any capital
contribution to such Person or any other investment in such
Person, including, without limitation, any arrangement pursuant
to which the investor incurs Debt of the types referred to in
clause (ix) or (x) of the definition of "Debt" in respect of such
Person.
"Issuing Bank" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment
hereunder has been assigned pursuant to Section 8.07; provided,
however, that, with respect to the Existing Letters of Credit,
the term "Issuing Bank" means Fleet Bank as issuer of the
Existing Letters of Credit.
"L Acquisition" has the meaning specified in the Preliminary
Statements.
"L/C Cash Collateral Account" has the meaning specified in
the Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(e)(ii)(A).
"Lender Party" means any Lender, the Issuing Bank or the
Swing Line Bank.
"Lenders" means the Initial Lenders and each Person that
shall become a Lender hereunder pursuant to Section 8.07.
"Letter of Credit" means any Letter of Credit issued
hereunder (as specified in Section 2.03(a)) or any Existing
Letter of Credit.
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Working Capital Lender pursuant to Section
2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
<PAGE>
"Letter of Credit Commitment" means, with respect to the
Issuing Bank, the amount set forth opposite the Issuing Bank's
name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in
the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as the Issuing Bank's "Letter of Credit
Commitment," as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit
Commitment at such time, as such amount may be reduced at or
prior to such time pursuant to Section 2.05 less the aggregate
Available Amount under all Existing Letters of Credit outstanding
at such time.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of
way or other encumbrance on title to real property.
"Loan Documents" means (i) this Agreement, (ii) the Notes,
(iii) the Guaranty, (iv) the Collateral Documents, (v) each
Letter of Credit Agreement, (vi) the Existing Letters of Credit,
(vii) each Bank Hedge Agreement, (viii) each document or
agreement delivered pursuant to Section 5.01(m), and all other
agreements, instruments and documents executed in connection
therewith, in each case as the same may at any time be amended,
supplemented, restated or otherwise modified and in effect.
"Loan Parties" means the Borrower and the Guarantors.
"Maintenance Capital Expenditures" means $8,000,000 for the
Fiscal Year ended March 31, 1997, $8,400,000 for the Fiscal Year
ended March 31, 1998, $8,820,000 for the Fiscal Year ended March
31, 1999, $9,265,000 for the Fiscal Year ended March 31, 2000,
and $9,725,000 for the Fiscal Year ended March 31, 2001 and for
each Fiscal Year thereafter.
"Margin Stock" has the meaning specified in Regulation U.
"Marine Midland" means Marine Midland Bank.
"Material Adverse Change" means any material adverse change
in (i) the business, condition (financial or otherwise),
operations, performance, properties or prospects of any Loan
Party and its Subsidiaries (taken as a whole), (ii) the ability
of the Borrower or any Guarantor to perform its obligations under
the Loan Documents or (iii) any material aspect of the
Transaction.
"Material Adverse Effect" has the meaning specified in
Section 3.01(e).
<PAGE>
"Material Contract" means, with respect to any Person, each
contract listed on Schedule 4.01(ee), each contract which is a
replacement or a substitute for any contract listed on Schedule
4.01(ee) and each other contract to which such Person is a party
which is material to the business, condition (financial or
otherwise), operations, performance, properties or prospects of
such Person.
"Merger" means the merger of L Acquisition with and into
the Company as contemplated in the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger,
dated August 24, 1996, by and among the Borrower, L Acquisition
and the Company, as the same may be amended, supplemented or
otherwise modified from time to time; provided, however, that any
amendments, supplements or other modifications shall be approved
by the Required Banks in advance in writing.
"Merger Date" means the date on which the Merger is
consummated in accordance with the Merger Agreement.
"Multiemployer Plan" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which any Loan Party or any
ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained
for employees of any Loan Party or any ERISA Affiliate and at
least one Person other than the Loan Parties and the ERISA
Affiliates or (ii) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or
issuance of any Debt or capital stock or other ownership or
profit interest, any securities convertible into or exchangeable
for capital stock or other ownership or profit interest or any
warrants, rights, options or other securities to acquire capital
stock or other ownership or profit interest by any Person (other
than the sale of shares of common stock of the Borrower to
employees of the Borrower pursuant to the exercise of stock
options received by such employees in connection with any Stock
Option Plans), or any Extraordinary Receipt received by or paid
to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration) by or
on behalf of such Person in connection with such transaction
after deducting therefrom only (without duplication) (i)
reasonable and customary brokerage commissions, underwriting fees
and discounts, legal fees, finder's fees and other similar fees
and commissions, (ii) the amount of taxes payable in connection
with or as a result of such transaction and (iii) the amount of
any Debt (not including any Debt incurred under this Agreement)
<PAGE>
secured by a Lien on such asset that, by the terms of such
transaction, is required to be repaid upon such disposition, in
each case to the extent, but only to the extent, that the amounts
so deducted are, at the time of receipt of such cash, actually
paid to a Person that is not an Affiliate of such Person or any
Loan Party or any Affiliate of any Loan Party and are properly
attributable to such transaction or to the asset that is the
subject thereof.
"Note" means a Term A Note, a Term B Note or a Working
Capital Note.
"Note Repurchase Sub-Facility" has the meaning specified in
Section 2.01(c).
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(e).
"Notice of Swing Line Borrowing" has the meaning specified
in Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(e).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind,
including, without limitation, any liability of such Person on
any claim, whether or not the right of any creditor to payment in
respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the
generality of the foregoing, the Obligations of the Loan Parties
under the Loan Documents include (i) the obligation to pay
principal, interest, Letter of Credit commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities
and other amounts payable by any Loan Party under any Loan
Document, (ii) all liabilities and other obligations arising out
of, based upon or relating to the Existing Letters of Credit, and
(iii) the obligation of any Loan Party to reimburse any amount in
respect of any of the foregoing that any Lender Party, in its
sole discretion, may elect to pay or advance on behalf of such
Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Offer to Purchase" means the Offer to Purchase, dated
August 30, 1996, of L Acquisition relating to the Tender Offer as
amended, supplemented, or modified to the date hereof.
<PAGE>
"Open Year" has the meaning specified in Section 4.01(t).
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure
proceeding shall have been commenced: (i) Liens for taxes,
assessments and governmental charges or levies not yet due and
payable; (ii) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30
days; and (iii) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure
public or statutory obligations.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint venture
or other entity or any division thereof, or a government or any
political subdivision, agency or instrumentality thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pre-Commitment Information" has the meaning specified in
Section 3.01(g).
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by
such corporation upon any distribution of such corporation's
assets, whether by dividend or upon liquidation.
"Prime Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times
be equal to the higher of:
(a) the rate of interest announced publicly by Fleet
in Boston, Massachusetts, from time to time, as Fleet's
prime rate, which is not necessarily the lowest rate made
available by Fleet; or
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Prime Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Pro Rata Share" of any amount means, with respect to any
Working Capital Lender at any time, the product of such amount
times a fraction the numerator of which is the amount of such
Lender's Working Capital Commitment at such time and the
denominator of which is the Working Capital Facility at such
time.
<PAGE>
"Receivables" of any Person means all of such Person's
right, title and interest, whether now owned or hereafter
acquired, in and to all accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles and other
obligations of any kind, now or hereafter existing, whether or
not arising out of or in connection with the sale or lease of
goods or the rendering of services, and all rights now or
hereafter existing in and to all security agreements, leases and
other contracts securing or otherwise relating to any such
accounts, contract rights, chattel paper, instruments, deposit
accounts, general intangibles or obligations.
"Redeemable" means, with respect to any capital stock or
other ownership or profit interest, Debt or other right or
Obligation, any such right or Obligation that (i) the issuer has
undertaken to redeem at a fixed or determinable date or dates,
whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the
issuer or (ii) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section
2.06(b)(v).
"Register" has the meaning specified in Section 8.07(d).
"Regulation G" means Regulation G of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing into the environment
(including the abandonment or discarding of barrels, containers
and other closed receptacles containing any Hazardous Materials)
or into or from any property, including, without limitation, the
movement of any Hazardous Materials through the air, soil,
surface waters or ground water.
"Remedial" shall have the meaning as set forth in CERCLA at
42 U.S.C. Section 9601(24) and/or any other applicable
Environmental Laws.
"Removal" shall have the meaning as set forth in CERCLA at
42 U.S.C. Section 9601(23) and/or any other applicable
Environmental Laws.
"Required Lenders" means at any time Lenders owed or holding
greater than 50% of the sum of (i) the aggregate principal
amount of the Advances outstanding at such time and (ii) the
aggregate Available Amount of all Letters of Credit outstanding
at such time, or, if no such principal amount and no Letters of
Credit are outstanding at such time, Lenders holding greater than
50% of the aggregate of the Term A Commitments, Term B
Commitments and Working Capital Commitments; provided, however,
that if any Lender shall be a Defaulting Lender at such time,
<PAGE>
there shall be excluded from the determination of Required
Lenders at such time (i) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, and (ii) the aggregate Term A
Commitment, Term B Commitment and Working Capital Commitment of
such Lender at such time. For purposes of this definition, the
aggregate principal amount of Swing Line Advances owing to the
Swing Line Bank, Letter of Credit Advances owing to the Issuing
Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Working Capital Lenders ratably in
accordance with their respective Working Capital Commitments.
"Response" shall have the meaning as set forth in CERCLA at
42 U.S.C. Section 9601(25) and/or any other applicable
Environmental Laws.
"Responsible Officer" means, in the case of the Borrower,
any officer and, in the case of any other Loan Party, the
Chairman, Treasurer or Assistant Treasurer of such Loan Party.
"Secured Obligations" has the meaning specified in the
Security Agreement.
"Secured Parties" means the Administrative Agent, the Lender
Parties, and the Hedge Banks and the other Persons the
Obligations owing to which are or are purported to be secured by
the Collateral under the terms of the Collateral Documents.
"Security Agreement" has the meaning specified in Section
3.01(a).
"Senior Note Indenture" means the Indenture, dated as of
September 2, 1993, pursuant to which the Senior Notes were
issued.
"Senior Notes" means the 11-1/2% Senior Secured Notes of the
Company due 2000 issued pursuant to the Indenture.
"Shares" means the shares of Class A Common Stock, par value
$.01 per share, of the Company.
"Significant Subsidiary" means each Loan Party and any other
Subsidiary of the Borrower which (i) for the most recent Fiscal
Year of the Borrower accounted for more than 5% of the
Consolidated revenues of the Borrower, or (ii) as of the end of
such Fiscal Year was the owner of more than 5% of the
Consolidated assets of the Borrower, all as shown on the
Consolidated financial statements of the Borrower for such fiscal
year.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained
for employees of any Loan Party or any ERISA Affiliate and no
Person other than the Loan Parties and the ERISA Affiliates or
(ii) was so maintained and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
<PAGE>
"Solvent" and "Solvency" mean, with respect to any Person on
a particular date, that on such date (i) the fair value of the
property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair salable value
of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (iii) such Person
does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay such
debts and liabilities as they mature and (iv) such Person is not
engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the
amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit other
than a Trade Letter of Credit.
"Subordinated Debt" means any Debt of the Borrower that is
subordinated to the Obligations of the Borrower under the Loan
Documents on, and that otherwise contains, terms and conditions
reasonably satisfactory to the Administrative Agent and Required
Lenders.
"Surviving Debt" shall have the meaning specified in Section
3.01(c).
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust or
estate of which (or in which) more than 50% of (i) the issued and
outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (ii) the interest
in the capital or profits of such partnership, joint venture or
limited liability company or (iii) the beneficial interest in
such trust or estate is at the time directly or indirectly owned
or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(d) or (b) any Working Capital
Lender pursuant to Section 2.02(b).
"Swing Line Bank" means Fleet.
"Swing Line Borrowing" means a borrowing consisting of a
Swing Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(d).
<PAGE>
"Taxes" has the meaning specified in Section 2.12(a).
"Tender Offer" means the tender offer made by L Acquisition
for all of the Shares and all of the Warrants pursuant to the
Offer to Purchase.
"Tender Offer Documents" means collectively, (i) the tender
offer statement on Schedule 14D-1, dated August 30, 1996, filed
by L Acquisition with the Securities and Exchange Commission
pursuant to Section 14(d)(1) of the Exchange Act, together with
all exhibits thereto, including the Offer to Purchase and (ii)
the solicitation/recommendation statement on Schedule 14D-9,
dated August 30, 1996, filed by the Company pursuant to Section
14(d)(4) of the Exchange Act, in each case, as amended, supple-
mented or otherwise modified from time to time.
"Term A Advance" has the meaning specified in Section
2.01(a).
"Term A Borrowing" means a borrowing consisting of simulta-
neous Term A Advances of the same Type made by the Term A Lend-
ers.
"Term A Commitment" means, with respect to any Term A Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term A Commitment" or, if
such Lender has entered into one or more Assignments and Accep-
tances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Term A Commitment," as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"Term A Facility" means, at any time, the aggregate amount
of the Term A Lenders' Term Commitments at such time.
"Term A Lender" means any Lender that has a Term A Commit-
ment.
"Term A Note" means a promissory note of the Borrower
payable to the order of any Term A Lender, in substantially the
form of Exhibit C hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Term A Advances made
by such Lender.
"Term B Advance" has the meaning specified in Section
2.01(b).
"Term B Borrowing" means a borrowing consisting of simulta-
neous Term B Advances of the same Type made by the Term B Lend-
ers.
"Term B Commitment" means, with respect to any Term B Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B Commitment" or, if
such Lender has entered into one or more Assignments and Accep-
tances, set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Term B Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
<PAGE>
"Term B Facility" means, at any time, the aggregate amount
of the Term B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commit-
ment.
"Term B Note" means a promissory note of the Borrower
payable to the order of any Term B Lender, in substantially the
form of Exhibit D hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the Term B Advances made
by such Lender.
"Term Commitments" means the Term A Commitments and the Term
B Commitments.
"Term Facilities" means the Term A Facility and the Term B
Facility.
"Termination Date" means the date of termination in whole of
the Commitments pursuant to Section 2.05 or 6.01.
"Trade Letter of Credit" means any Letter of Credit that is
issued for the benefit of a supplier of Inventory to the Borrower
or any of its Subsidiaries to effect payment for such Inventory,
the conditions to drawing under which include the presentation to
the Issuing Bank of negotiable bills of lading, invoices and
related documents sufficient, in the judgment of the Issuing
Bank, to create a valid and perfected lien on or security inter-
est in such Inventory, bills of lading, invoices and related
documents in favor of the Issuing Bank.
"Transaction" means the transactions contemplated by the
Acquisition, the Merger and the Loan Documents.
"Type" refers to the distinction between Advances bearing
interest at the Prime Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Working Capital Commitment" means, with respect to
any Working Capital Lender, at any time, (i) such Lender's
Working Capital Commitment at such time minus (ii) the sum of (x)
the aggregate principal amount of all Working Capital Advances,
Swing Line Advances and Letter of Credit Advances made by such
Lender (in its capacity as a Lender) and outstanding at such
time, plus (y) such Lender's Pro Rata Share of (1) the aggregate
Available Amount of all Letters of Credit, including, without
limitation, Existing Letters of Credit, outstanding at such
time, (2) the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Bank pursuant to Section 2.03(c) and
outstanding at such time and (3) the aggregate principal amount
of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.01(d) and outstanding at such time.
"Unused Term A Commitment" means, with respect to any Term A
Lender, at any time, (i) such Lender's Term A Commitment at such
time minus (ii) the aggregate principal amount of all Term A
Advances made prior to such time by such Lender (in its capacity
as a Lender).
<PAGE>
"Unused Term B Commitment" means, with respect to any Term B
Lender, at any time, (i) such Lender's Term B Commitment at such
time minus (ii) the aggregate principal amount of all Term B
Advances made prior to such time by such Lender (in its capacity
as a Lender).
"Voting Stock" means capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote
for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Warrants" means, collectively, the Company's issued and
outstanding warrants to purchase shares of the Company's Class A
Common Stock.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party
or in respect of which any Loan Party could have liability.
"Withdrawal Liabilities" has the meaning specified in Part I
of Subtitle E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in
Section 2.01(c).
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by
the Working Capital Lenders.
"Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, the amount set forth opposite
such Lender's name on Schedule I hereto under the caption "Work-
ing Capital Commitment" or, if such Lender has entered into one
or more Assignments and Acceptances, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to
Section 8.07(d) as such Lender's "Working Capital Commitment," as
such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"Working Capital Facility" means, at any time, the aggregate
amount of the Working Capital Lenders' Working Capital Commit-
ments at such time.
"Working Capital Lender" means any Lender that has a Working
Capital Commitment.
"Working Capital Note" means a promissory note of the
Borrower payable to the order of any Working Capital Lender, in
substantially the form of Exhibit E hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting
from the Working Capital Advances made by such Lender.
"Working Capital Termination Date" means the earlier of the
fifth anniversary of the Closing Date and the Termination Date.
<PAGE>
SECTION 1.02. Computation of Time Periods. In this Agree-
ment in the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding."
SECTION 1.03. Accounting Terms. All accounting terms used
in any of the financial covenants set forth in Section 5.04, and
all other accounting terms not specifically defined herein, shall
be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section 4.01(f)(ii)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances.
(a) The Term A Advances. Each Term A Lender severally
agrees, on the terms and conditions hereinafter set forth, to
make an advance to the Borrower on the Closing Date and an
advance to the Borrower on the Merger Date to finance the Merger
(each such advance, a "Term A Advance"), the aggregate amount of
such Term A Advances not to exceed such Lender's Term A Commit-
ment. Each of the two Term A Borrowings shall be in an integral
multiple of $1,000,000 and shall consist of Term A Advances made
simultaneously by the Term A Lenders ratably according to their
Term A Commitments. Amounts borrowed under this Section 2.01(a)
and repaid or prepaid may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally
agrees, on the terms and conditions hereinafter set forth, to
make an advance to the Borrower on the Closing Date and an
advance to the Borrower on the Merger Date to finance the Merger
(each such advance, a "Term B Advance"), the aggregate amount of
such Term B Advances not to exceed such Lender's Term B Commit-
ment. Each of the two Term B Borrowings shall be in an integral
multiple of $1,000,000 and shall consist of Term B Advances made
simultaneously by the Term B Lenders ratably according to their
Term B Commitments. Amounts borrowed under this Section 2.01(b)
and repaid or prepaid may not be reborrowed.
(c) The Working Capital Advances. Each Working Capital
Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances (each a "Working Capital Advance") to
the Borrower from time to time on any Business Day during the
period from the date hereof until the Working Capital Termination
Date in an amount for each such Advance not to exceed such
Lender's Unused Working Capital Commitment at such time. Each
Working Capital Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof (other than a Borrowing the proceeds of which shall be
used solely to repay or prepay in full outstanding Swing Line
<PAGE>
Advances or outstanding Letter of Credit Advances) and shall
consist of Working Capital Advances made simultaneously by the
Working Capital Lenders ratably according to their Working
Capital Commitments. Within the limits of each Working Capital
Lender's Unused Working Capital Commitment in effect from time to
time, the Borrower may borrow, repay and reborrow.
$75,000,000 ("Note Repurchase Sub-Facility") of the Working
Capital Commitments is solely available to finance the Company's
obligation to repurchase Senior Notes pursuant to the rights of
the holders of the Senior Notes to require the Company to repur-
chase such Senior Notes because of a "change of control" of the
Company. Amounts shall be drawn in a single draw under this Note
Repurchase Sub-Facility. Insofar as any amounts available under
the Note Repurchase Sub-Facility are not drawn to repurchase the
Senior Notes, and the holders' rights to cause the Company to
repurchase the Senior Notes have expired, any remaining avail-
ability under the Note Repurchase Sub-Facility shall immediately
terminate and the Lender Parties' Working Capital Commitments
shall be ratably and irrevocably reduced by such amount.
(d) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank may, if in its
discretion it elects to do so, make, on the terms and conditions
hereinafter set forth, Swing Line Advances to the Borrower from
time to time on any Business Day during the period from the date
hereof until the Working Capital Termination Date (i) in an
aggregate amount not to exceed at any time outstanding $5,000,000
(the "Swing Line Facility") and (ii) in an amount for each such
Swing Line Borrowing not to exceed the aggregate of the Unused
Working Capital Commitments of the Working Capital Lenders at
such time. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line
Advance. Each Swing Line Borrowing shall be made as a Prime Rate
Advance. Within the limits of the Swing Line Facility and within
the limits referred to in clause (ii) above, so long as the Swing
Line Bank, in its discretion, elects to make Swing Line Advances,
the Borrower may borrow and reborrow under this Section 2.01(d)
and may repay or prepay the Swing Line Advances at such times
prior to the Working Capital Termination Date, and in such
integral multiples, as the Borrower may elect.
(e) Letters of Credit. The Issuing Bank agrees, on the
terms and conditions hereinafter set forth, to issue letters of
credit for the account of the Borrower from time to time on any
Business Day during the period from the Closing Date until sixty
(60) days before the Working Capital Termination Date (A) in an
aggregate Available Amount for all Letters of Credit, including,
without limitation, Existing Letters of Credit, not to exceed at
any time the Issuing Bank's Letter of Credit Commitment at such
time and (B) in an Available Amount for each such Letter of
Credit not to exceed an amount equal to the Unused Working
Capital Commitments of the Working Capital Lenders at such time.
No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal)
later than the earliest of (A) 60 days before the Working Capital
Termination Date, (B) in the case of a Standby Letter of Credit,
<PAGE>
365 days after the date of issuance thereof and (C) in the case
of a Trade Letter of Credit, 180 days after the date of issuance
thereof. The foregoing notwithstanding, any Standby Letter of
Credit may, by its terms, be renewable annually upon notice (a
"Notice of Renewal") given to the Issuing Bank and the Adminis-
trative Agent on or prior to any date for notice of renewal set
forth in such Letter of Credit (but in any event at least five
(5) Business Days prior to the date of the proposed renewal of
such Standby Letter of Credit) and upon fulfillment of the
applicable conditions set forth in Article III unless such
Issuing Bank shall have notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit (but in any event
at least thirty (30) Business Days prior to the date of automatic
renewal) of its election not to renew such Standby Letter of
Credit (a "Notice of Termination"); provided that the terms of
each Standby Letter of Credit that is automatically renewable
annually shall not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any
event to be extended to a date later than sixty (60) days before
the Working Capital Termination Date. If either a Notice of
Renewal is not given by the Borrower or a Notice of Termination
is given by the Issuing Bank pursuant to the immediately preced-
ing sentence, such Standby Letter of Credit shall expire on the
date on which it otherwise would have been automatically renewed;
provided, however, that even in the absence of receipt of a
Notice of Renewal, the Issuing Bank may, in its discretion unless
instructed to the contrary by the Administrative Agent or the
Borrower, deem that a Notice of Renewal had been timely delivered
and, in such case, a Notice of Renewal shall be deemed to have
been so delivered for all purposes under this Agreement. Within
the limits of the Letter of Credit Facility, and subject to the
limits referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.01(e), repay any Letter
of Credit Advances resulting from drawings under Letters of
Credit pursuant to Section 2.03(c) and request the issuance of
additional Letters of Credit under this Section 2.01(e).
(f) Relating to Both the Term A Advances and Term B Advanc-
es. The aggregate amount of the Term A Advances and Term B
Advances made on the Closing Date and Merger Date shall be
apportioned so that on each of such borrowing dates (i) 5/8 of
the total Borrowings constituting Term A Borrowings and Term B
Borrowings shall be Term A Borrowings and (ii) 3/8 of the total
Borrowings constituting Term A Borrowings and Term B Borrowings
shall be Term B Borrowings. Each Term A Lender and Term B Lender
shall fund its ratable portion of such Term A Borrowings and
Term B Borrowings, respectively.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.03, or, with respect to Swing Line Advanc-
es, in Section 2.02(b) below, each Borrowing shall be made on
notice, given not later than 11:00 A.M. (Buffalo, New York time)
on the third Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or the second Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of
<PAGE>
Prime Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each appropriate Lender prompt notice thereof
by telex or telecopier; provided, however, that, notwithstanding
any other provision of this Section 2.02, the initial Term A
Borrowing and Term B Borrowing (the "Initial Term Borrowings")
shall each consist solely of Prime Rate Advances and shall each
be made on notice, given at such time in the afternoon on the day
prior to the Closing Date as shall be acceptable to the Adminis-
trative Agent, from the Borrower to the Administrative Agent,
which shall give to each appropriate Lender prompt notice thereof
by telex or telecopier. Each such notice of a Borrowing (a
"Notice of Borrowing") may be by telephone, confirmed immediately
in writing, or telex or telecopier in substantially the form of
Exhibit F hereto, specifying therein the requested (i) date of
such Borrowing, (ii) Facility under which such Borrowing is to be
made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Inter-
est Period for each such Advance. Each appropriate Lender shall,
before 11:00 A.M. (Buffalo, New York time) on the date of such
Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments
under the applicable Facility of such Lender and the other
appropriate Lenders. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such
funds available to the Borrower by crediting the Borrower's
Account; provided, however, that in the case of any Working
Capital Borrowing, the Administrative Agent shall first make a
portion of such funds equal to the aggregate principal amount of
any Swing Line Advances and Letter of Credit Advances made by the
Swing Line Bank, the Issuing Bank and any other Working Capital
Lender and outstanding on the date of such Working Capital
Borrowing, plus interest accrued and unpaid thereon to and as of
such date, available to the Swing Line Bank, the Issuing Bank and
such other Working Capital Lenders for repayment of such Swing
Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made either (x) on
notice, given not later than 11:00 A.M. (Buffalo, New York time)
on the date of the proposed Swing Line Borrowing, by the Borrower
to the Swing Line Bank and the Administrative Agent or (y)
pursuant to other arrangements, including, by way of example and
not of limitation, arrangements for daily repayments and borrowi-
ngs on each Business Day, which are satisfactory in form and
substance to the Swing Line Bank, the Administrative Agent and
the Borrower. Each notice of a Swing Line Borrowing pursuant to
clause (x) in the immediately preceding sentence (a "Notice of
Swing Line Borrowing") shall be by telephone, confirmed immedi-
ately in writing, or telex or telecopier, specifying therein the
requested (i) date of such Borrowing, (ii) amount of such Borrow-
ing and (iii) maturity of such Borrowing (which maturity shall be
no later than the seventh day after the requested date of such
Borrowing). If, in its discretion, it elects to make a requested
Swing Line Advance, the Swing Line Bank will make the amount
<PAGE>
thereof available to the Administrative Agent at the Administra-
tive Agent's Account, in same day funds. After the Administra-
tive Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administra-
tive Agent will make such funds available to the Borrower by
crediting the Borrower's Account. Upon written demand by the
Swing Line Bank, with a copy of such demand to the Administrative
Agent, each other Working Capital Lender shall purchase from the
Swing Line Bank, and the Swing Line Bank shall sell and assign to
each such other Working Capital Lender, such other Lender's Pro
Rata Share of all outstanding Swing Line Advances as of the date
of such demand, by making available for the account of its
Applicable Lending Office to the Administrative Agent for the
account of the Swing Line Bank, by deposit to the Administrative
Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of Swing Line Advanc-
es to be purchased by such Lender. The Borrower hereby agrees to
each such sale and assignment. Each Working Capital Lender
agrees to purchase its Pro Rata Share of outstanding Swing Line
Advances on (i) the Business Day on which demand therefor is made
by the Swing Line Bank, provided that notice of such demand is
given not later than 11:00 A.M. (Buffalo, New York time) on such
Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon
any such assignment by the Swing Line Bank to any other Working
Capital Lender of a portion of a Swing Line Advance, the Swing
Line Bank represents and warrants to such other Lender that the
Swing Line Bank is the legal and beneficial owner of such inter-
est being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such Swing
Line Advance, the Loan Documents or any Loan Party. If and to
the extent that any Working Capital Lender shall not have so made
the amount of such Swing Line Advance available to the Adminis-
trative Agent, such Working Capital Lender agrees to pay to the
Administrative Agent, for the account of the Swing Line Bank,
forthwith on demand such amount together with interest thereon,
for each day from the date of demand by the Swing Line Bank until
the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate. If such Lender shall pay to the Administra-
tive Agent such amount for the account of the Swing Line Bank on
any Business Day, such amount so paid in respect of principal
shall constitute a Swing Line Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line
Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances if the obligation of the appropriate Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or Section 2.10, and (ii) Term A Advances may not be
outstanding as part of more than seven (7) separate Borrowings,
Term B Advances may not be outstanding as part of more than seven
(7) separate Borrowings, and the Working Capital Advances made on
any date may not be outstanding as part of more than ten (10)
separate Borrowings.
<PAGE>
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice
of Borrowing for such Borrowing the applicable conditions set
forth in Article III, including, without limitation, any loss
(including loss of anticipated profits as reasonably determined
by such Lender), cost or expense incurred by reason of the
liquidation or redeployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received
notice from an appropriate Lender prior to the date of any
Borrowing ( including, by way of example and not of limitation,
prior to the date of the Initial Term Borrowings) under a Facili-
ty under which such Lender has a Commitment that such Lender will
not make available to the Administrative Agent such Lender's
ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance
with subsection (a) or (b) of this Section 2.02 and the Adminis-
trative Agent may, in reliance upon such assumption, make avail-
able to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such
ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding
amount and to pay interest thereon, for each day from the date
such amount is made available to the Borrower until the date such
amount is repaid or paid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at such
time under Section 2.07 to Advances comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding
amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance
on the date of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement
Under Letters of Credit.
(a) Request for Issuance. Each Letter of Credit which is
not an Existing Letter of Credit shall be issued upon notice,
given not later than 11:00 A.M. (Buffalo, New York time) on the
fifth (5th) Business Day prior to the date of the proposed
issuance of such Letter of Credit, by the Borrower to the Issuing
<PAGE>
Bank, which shall give to the Administrative Agent and each
Working Capital Lender prompt notice thereof by telex or
telecopier. Each such notice of issuance of a Letter of Credit
(a "Notice of Issuance") shall be by telephone, confirmed immedi-
ately in writing, or telex or telecopier, specifying therein the
requested (i) date of such issuance (which shall be a Business
Day), (ii) Available Amount of such Letter of Credit, (iii)
expiration date of such Letter of Credit, (iv) name and address
of the beneficiary of such Letter of Credit and (v) form of such
Letter of Credit, and shall be accompanied by such application
and agreement for letter of credit as the Issuing Bank may
specify to the Borrower for use in connection with such requested
Letter of Credit (a "Letter of Credit Agreement"). If the
requested form of such Letter of Credit is acceptable to the
Issuing Bank, in its sole discretion, the Issuing Bank will, upon
fulfillment of the applicable conditions set forth in Article
III, make such Letter of Credit available to the Borrower at its
office referred to in Section 8.02 or as otherwise agreed with
the Borrower in connection with such issuance. In the event and
to the extent that the provisions of any such Letter of Credit
Agreement shall conflict with this Agreement, the provisions of
this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall
furnish (i) to the Administrative Agent on the first Business Day
of each week a written report summarizing issuance and expiration
dates of Letters of Credit issued during the previous week and
drawings during such week under all Letters of Credit, including,
without limitation, drawings under Existing Letters of Credit,
(ii) to the Administrative Agent, the Borrower and each Working
Capital Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of
Credit issued during the preceding month and drawings during such
month under all Letters of Credit, including, without limitation,
drawings under Existing Letters of Credit, and (iii) to the
Administrative Agent, the Borrower and each Working Capital
Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Avail-
able Amount during the preceding calendar quarter of all Letters
of Credit, including, without limitation, all Existing Letters
of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing
Bank of a draft drawn under any Letter of Credit, including,
without limitation, under any Existing Letter of Credit, shall
constitute for all purposes of this Agreement the making by the
Issuing Bank of a Letter of Credit Advance which shall be a Prime
Rate Advance, in the amount of such draft. Each of the Borrower,
the Administrative Agent and each Working Capital Lender hereby
acknowledges and agrees that Letter of Credit Advances may be
made, or deemed made, by the Issuing Bank in respect of Existing
Letters of Credit or any other Letter of Credit and to partici-
pate in all Letter of Credit Advances made hereunder as provided
herein. Upon written demand by the Issuing Bank, with a copy of
such demand to the Administrative Agent, each Working Capital
Lender shall purchase from the Issuing Bank, and the Issuing Bank
shall sell and assign to each such Working Capital Lender, such
<PAGE>
Lender's Pro Rata Share of such outstanding Letter of Credit
Advance as of the date of such purchase, by making available (for
the account of its Applicable Lending Office) to the Administra-
tive Agent (for the account of the Issuing Bank), by deposit to
the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such
Letter of Credit Advance to be purchased by such Lender. Prompt-
ly after receipt thereof, the Administrative Agent shall transfer
such funds to the Issuing Bank. The Borrower hereby agrees to
each such sale and assignment. Each Working Capital Lender
agrees to purchase its Pro Rata Share of an outstanding Letter of
Credit Advance on (i) the Business Day on which demand therefor
is made by the Issuing Bank, provided notice of such demand is
given not later than 11:00 A.M. (Buffalo, New York time) on such
Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Working
Capital Lender of a portion of a Letter of Credit Advance, the
Issuing Bank represents and warrants to such other Lender that
the Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but
makes no other representation or warranty and assumes no respon-
sibility with respect to such Letter of Credit Advance, the Loan
Documents or any Loan Party. If and to the extent that any
Working Capital Lender shall not have so made the amount of such
Letter of Credit Advance available to the Administrative Agent,
such Working Capital Lender agrees to pay to the Administrative
Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Issuing Bank
until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate for its account or the account of the
Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing
Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Letter of Credit
Advance made by the Issuing Bank shall be reduced by such amount
on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure
of any Lender to make any Letter of Credit Advance to be made by
it on the date specified in Section 2.03(c) shall not relieve any
other Lender of its obligation hereunder to make its Letter of
Credit Advance on such date, but no Lender shall be responsible
for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances.
(a) Term A Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term A
Lenders the aggregate outstanding principal amount of the Term A
Advances on the following dates in the amounts indicated (which
amounts shall be reduced as a result of the application of
<PAGE>
prepayments in accordance with the order of priority set forth in
Section 2.06):
Date Amount
March 31, 1997 $5,000,000.00
June 30, 1997 5,000,000.00
September 30, 1997 5,000,000.00
December 31, 1997 5,000,000.00
March 31, 1998 5,000,000.00
June 30, 1998 6,250,000.00
September 30, 1998 6,250,000.00
December 31, 1998 6,250,000.00
March 31, 1999 6,250,000.00
June 30, 1999 6,875,000.00
September 30, 1999 6,875,000.00
December 31, 1999 6,875,000.00
March 31, 2000 6,875,000.00
June 30, 2000 6,875,000.00
September 30, 2000 6,875,000.00
December 31, 2000 6,875,000.00
March 31, 2001 6,875,000.00
June 30, 2001 10,000,000.00
September 30, 2001 10,000,000.00
provided, however, that the final principal installment shall be
in an amount equal to the aggregate principal amount of the Term
A Advances outstanding on such date.
(b) Term B Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term B
Lenders the aggregate outstanding principal amount of the Term B
Advances on the following dates in the amounts indicated (which
amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in
Section 2.06):
Date Amount
March 31, 1997 $250,000.00
June 30, 1997 250,000.00
September 30, 1997 250,000.00
December 31, 1997 250,000.00
March 31, 1998 250,000.00
June 30, 1998 250,000.00
September 30, 1998 250,000.00
December 31, 1998 250,000.00
March 31, 1999 250,000.00
June 30, 1999 250,000.00
September 30, 1999 250,000.00
December 31, 1999 250,000.00
March 31, 2000 250,000.00
June 30, 2000 250,000.00
September 30, 2000 250,000.00
December 31, 2000 250,000.00
March 31, 2001 250,000.00
June 30, 2001 187,500.00
September 30, 2001 187,500.00
<PAGE>
December 31, 2001 187,500.00
March 31, 2002 187,500.00
June 30, 2002 8,750,000.00
September 30, 2002 8,750,000.00
December 31, 2002 8,750,000.00
March 31, 2003 8,750,000.00
June 30, 2003 17,500,000.00
September 30, 2003 17,500,000.00
provided, however, that the final principal installment shall be
equal to the aggregate principal amount of the Term B Advances
outstanding on such date.
(c) Working Capital Advances. The Borrower shall repay to
the Administrative Agent for the ratable account of the Working
Capital Lenders on the Working Capital Termination Date the
aggregate outstanding principal amount of the Working Capital
Advances then outstanding.
(d) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and
each other Working Capital Lender that has made a Swing Line
Advance the outstanding principal amount of each Swing Line
Advance made by each of them on the earlier of the maturity date
for such Swing Line Advance (which maturity date shall be no
later than the seventh day after the requested date of such Swing
Line Advance) and the Working Capital Termination Date.
(e) Letter of Credit Advances. (i) The Borrower shall
repay to the Administrative Agent for the account of the Issuing
Bank and each other Working Capital Lender that has made a Letter
of Credit Advance on the earlier of demand and the Working
Capital Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agree-
ment, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit, including, without
limitation, any Existing Letter of Credit, shall be unconditional
and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any
Loan Document, any Letter of Credit Agreement, any Letter of
Credit, including, without limitation, any Existing Letter
of Credit, or any other agreement or instrument relating to
any of the foregoing (all of the foregoing being, collec-
tively, the "L/C Related Documents");
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
Obligations of the Borrower in respect of any L/C Related
Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
<PAGE>
(C) the existence of any claim, set-off, defense
or other right that the Borrower may have at any time
against any beneficiary or any transferee of a Letter of
Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), the Issuing Bank, or any
other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or
(E) any exchange, release or non-perfection of
any Collateral or other collateral, or any release or amend-
ment or waiver of or consent to departure from any Guaranty
or any other guarantee, for all or any of the Obligations of
the Borrower in respect of the L/C Related Documents.
SECTION 2.05. Termination or Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least three
Business Days' notice to the Administrative Agent, terminate in
whole or reduce in part the unused portions of the Letter of
Credit Facility and the Unused Working Capital Commitments;
provided, however, that each partial reduction of a Facility (i)
shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, except insofar as
Commitments are reduced as a part of the termination of the Note
Repurchase Sub-Facility which shall be in the amount of such
terminated facility, and (ii) shall be made ratably among the
appropriate Lenders in accordance with their Commitments with
respect to such Facility.
(b) Mandatory. (i) On the date of each Term A Borrowing,
after giving effect to such Term A Borrowing, and from time to
time thereafter upon each repayment or prepayment of the Term A
Advances, the aggregate Term A Commitments of the Term A Lenders
shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate
Term A Commitments immediately prior to such reduction exceed the
aggregate unpaid principal amount of the Term A Advances then
outstanding; provided, however, that the Term A Commitments shall
terminate, and all Advances made thereunder shall be repaid in
full, no later than the fifth anniversary of the Closing Date.
(ii) On the date of each Term B Borrowing, after giving
effect to such Term B Borrowing, and from time to time thereafter
upon each repayment or prepayment of the Term B Advances, the
aggregate Term B Commitments of the Term B Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an
amount equal to the amount by which the aggregate Term B
Commitments immediately prior to such reduction exceed the
aggregate unpaid principal amount of the Term B Advances then
outstanding; provided, however, that the Term B Commitments shall
terminate, and all Advances made thereunder shall be repaid in
full, no later than the seventh anniversary of the Closing Date.
<PAGE>
(iii) On and after the date that all Term A
Advances and Term B Advances shall have been repaid in full, the
Working Capital Facility shall be automatically and permanently
reduced on each date on which prepayment thereof is required to
be made pursuant to Section 2.06(b)(i), (ii), (iii), (iv) or (v)
in an amount equal to the applicable Reduction Amount, provided
that each such reduction of the Working Capital Facility shall be
made ratably among the Working Capital Lenders in accordance with
their Working Capital Commitments.
(iv) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the
Working Capital Facility by the amount, if any, by which the
amount of the Letter of Credit Facility exceeds the Working
Capital Facility after giving effect to such reduction of the
Working Capital Facility.
(v) In the event the Closing Date shall not have
occurred by December 31, 1996, then all of the Commitments shall
be automatically terminated and this Agreement shall be of no
further force or effect.
SECTION 2.06. Prepayments.
(a) Optional. The Borrower may, upon at least one (1)
Business Day's notice in the case of Prime Rate Advances and
three (3) Business Days' notice in the case of Eurodollar Rate
Advances, in each case to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, permanently
prepay the outstanding aggregate principal amount of the
Advances, in whole or ratably in part, together with accrued
interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that (i) each such
partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) no such prepayment of a Eurodollar Rate Advance
shall be made other than on the last day of an Interest Period
therefor. Each permanent prepayment made pursuant to this
Section 2.06(a) shall be applied to repay the Facilities in the
following manner: first, ratably to the Term A Facility and the
Term B Facility, and ratably to each unpaid installment of
principal of each of the Term Facilities; second, to prepay
Letter of Credit Advances then outstanding until such Advances
are paid in full; third, to prepay Swing Line Advances then
outstanding until such Advances are paid in full; fourth, to
prepay Working Capital Advances then outstanding until such
Working Capital Advances are paid in full (whereupon the Working
Capital Facility shall be permanently reduced as set forth in
Section 2.05(b)(iii)); and fifth, deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available
Amount of the Letters of Credit then outstanding. Upon the
drawing of any Letter of Credit for which funds are on deposit in
the L/C Cash Collateral Account, such funds shall be applied to
reimburse the Issuing Bank or the Working Capital Lenders, as
applicable.
<PAGE>
(b) Mandatory. (i) Within one hundred and five (105) days
following the end of each Fiscal Year, the Borrower shall deliver
to the Administrative Agent a certificate of the Borrower's chief
executive officer or chief financial officer demonstrating its
calculation of Excess Cash Flow for such Fiscal Year along with a
prepayment of the then outstanding Advances equal to seventy-five
percent (75%) of such annual Excess Cash Flow; provided, however,
that, if the ratio of (i) Consolidated Funded Debt to (ii) EBITDA
for such Fiscal Year of the Borrower is less than 2.75, then the
required prepayment of the then outstanding Advances shall be in
the amount of fifty percent (50%) of the annual Excess Cash Flow
for such Fiscal Year rather than seventy-five percent (75%) of
such annual Excess Cash Flow.
(ii) Within fifteen (15) days after receipt by any Loan
Party or any of its Subsidiaries of Net Cash Proceeds from the
sale, lease, transfer or other disposition of any property or
assets of any Loan Party or any of its Subsidiaries (other than
any sale, lease, transfer or other disposition of inventory in
the ordinary course of business), the Borrower shall prepay the
then outstanding Advances in an amount equal to one-hundred
percent (100%) of such Net Cash Proceeds in excess of $1,000,000
in any Fiscal Year.
(iii) Within fifteen (15) days after receipt by any
Loan Party or any of its Subsidiaries of Net Cash Proceeds from
the sale or issuance by any Loan Party or any of its Subsidiaries
of any capital stock or other ownership or profit interest, any
securities convertible or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights or options
to acquire capital stock or other ownership or profit interest,
the Borrower shall prepay the then outstanding Advances in an
amount equal to fifty percent (50%) of such Net Cash Proceeds;
provided, however, that, if (A) the ratio of (i) Consolidated
Funded Debt to (ii) EBITDA for the then most recently completed
four fiscal quarters of the Borrower is less than 2.75, and (B),
in the reasonable discretion of the Administrative Agent after
consultation with the Borrower, there is no reason to believe
that such ratio will not continue to be less than 2.75 as at the
end of the next succeeding fiscal quarter of the Borrower, for
the then most recently completed four fiscal quarters of the
Borrower, the Borrower shall not be required to prepay any of the
then outstanding Advances with any Net Cash Proceeds described in
this Section 2.06(b)(iii).
(iv) Within fifteen (15) days following the receipt of
Net Cash Proceeds by any Loan Party or any of its Subsidiaries
from any Extraordinary Receipt received by or paid to or for the
account of any Loan Party or any of its Subsidiaries and not
otherwise included in clause (i), (ii) or (iii) above, the
Borrower shall prepay the then outstanding Advances in an amount
equal to one hundred percent (100%) of such Net Cash Proceeds.
(v) Each prepayment made pursuant to clause (i), (ii),
(iii) or (iv) shall be applied to prepay the Facilities in the
following manner: first, ratably to the Term A Facility and the
Term B Facility, and ratably to each unpaid installment of
principal of each of the Term Facilities; second, to prepay
<PAGE>
Letter of Credit Advances then outstanding until such Letter of
Credit Advances are paid in full; third, to prepay Swing Line
Advances then outstanding until such Swing Line Advances are paid
in full; fourth, to prepay Working Capital Advances then
outstanding until such Working Capital Advances are paid in full
(whereupon the Working Capital Facility shall be permanently
reduced as set forth in Section 2.05(b)(iii)); and fifth,
deposited in the L/C Cash Collateral Account to cash
collateralize 100% of the Available Amount of the Letters of
Credit then outstanding. The amount remaining (if any) after the
required prepayment of the Advances then outstanding and the 100%
cash collateralization of the aggregate Available Amount of
Letters of Credit, including, without limitation, Existing
Letters of Credit, then outstanding (the sum of such prepayment
amounts, cash collateralization amounts and remaining amount
being referred to herein as the "Reduction Amount") may be
retained by the Borrower. Upon the drawing of any Letter of
Credit, including, without limitation, any Existing Letter of
Credit, for which funds are on deposit in the L/C Cash Collateral
Account, such funds shall be applied to reimburse the Issuing
Bank or the Working Capital Lenders, as applicable. Upon the
termination of all of the Commitments and the indefeasible
payment in full of all Obligations, including, without
limitation, termination or expiration of all Letters of Credit,
including, without limitation, all Existing Letters of Credit,
and the indefeasible payment in full of all Obligations in
respect of all Letters of Credit, including, without limitation,
all Existing Letters of Credit, funds, if any, then remaining on
deposit in the L/C Cash Collateral Account shall be returned to
the Borrower.
(vi) The Borrower shall, within fifteen (15) days
following the end of each month in each Fiscal Year, pay to the
Administrative Agent for deposit in the L/C Cash Collateral
Account an amount sufficient to cause the aggregate amount on
deposit in such Account to equal the amount by which the
aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Letter of Credit Facility on such
Business Day.
(c) Application of Prepayments to the Term A Facility and
the Term B Facility. Upon receipt of any amounts to be applied
to the prepayment in respect of the Term A Facility and the Term
B Facility pursuant to this Section 2.06, the Administrative
Agent shall apply such amounts to the prepayment of the Term A
Advances and Term B Advances ratably; provided, however, that if
within five (5) Business Days of receiving notice from the
Administrative Agent of a prepayment any Term B Lender notifies
the Administrative Agent that it elects to refuse to accept the
prepayment of its Term B Advances, and the Borrower upon five (5)
Business Days' notice consents to such refusal, the
Administrative Agent shall apply the portion of such prepayment
that would have been allocated to the repayment of such Lender's
Term B Advances, to the prepayment of the Advances of the Lenders
under the Term A Facility ratably to each unpaid installment of
principal of such Facility (and, if all Lenders under the Term B
Facility elect to refuse their ratable share of such prepayment,
<PAGE>
only to the Advances of the Lenders under the Term A Facility).
If any Term B Lender shall not give notice to the Administrative
Agent within such five (5) Business Day period, the
Administrative Agent shall assume that such Lender shall have
accepted such prepayment.
SECTION 2.07. Interest.
(a) Scheduled Interest. The Borrower shall pay to the
Administrative Agent, for the benefit of the Lenders, interest on
the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Prime Rate Advances. During such periods as such
Advance is a Prime Rate Advance, a rate per annum equal at all
times to the sum of (x) the Prime Rate in effect from time to
time plus (y) the Applicable Margin for such Advance in effect
from time to time, payable in arrears monthly on the last day of
each month during such periods and on the date such Prime Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum equal
at all times during each Interest Period for such Advance to the
sum of (x) the Eurodollar Rate for such Interest Period for such
Advance plus (y) the Applicable Margin for such Advance in effect
on the first day of such Interest Period, payable in arrears on
the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day
of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i)
the unpaid principal amount of each Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above
and (ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum
required to be paid, in the case of interest, on the type of
Advance on which such interest has accrued pursuant to clause
(a)(i) or (a)(ii) above, and, in all other cases, on Prime Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the
Administrative Agent shall give notice to the Borrower and each
appropriate Lender of the applicable interest rate determined by
the Administrative Agent for purposes of clause (a)(i) or (ii).
<PAGE>
SECTION 2.08. Fees.
(a) Working Capital Commitment Fee. The Borrower shall pay
to the Administrative Agent, for the account of the Lenders, a
commitment fee, from the Closing Date in the case of each Initial
Lender and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Working Capital Termination Date,
payable in arrears on the Closing Date, thereafter quarterly on
the last Business Day of each March, June, September, and
December, commencing December 31, 1996, and on the Working
Capital Termination Date, at a rate per annum equal to .50% per
annum on the average daily Unused Working Capital Commitment of
such Lender; provided, however, such Commitment Fee shall be
decreased to .375% per annum for any periods when the ratio of
Funded Debt to EBITDA is less than 2.25, determined in the same
manner as is the Applicable Margin for the Term A Facility or the
Working Capital Facility. For the purposes of this clause (a),
Swing Line Advances shall not constitute utilization of the
Working Capital Commitments of the Working Capital Lenders.
(b) Term A Commitment Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, a
commitment fee, from the Closing Date in the case of each Initial
Lender and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case
of each other Lender, payable in arrears on the Closing Date,
thereafter quarterly on the last Business Day of each March,
June, September, and December, and on the Merger Date, at a rate
per annum equal to .50% per annum on the average daily Unused
Term A Commitment of such Lender.
(c) Term B Commitment Fee. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders, a
commitment fee, from the Closing Date in the case of each Initial
Lender and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case
of each other Lender, payable in arrears on the Closing Date,
thereafter quarterly on the last Business Day of each March,
June, September, and December, and on the Merger Date, at a rate
per annum equal to .50% per annum on the average daily Unused
Term B Commitment of such Lender.
(d) Letter of Credit Fees. (i) The Borrower shall pay to
the Administrative Agent for the account of each Working Capital
Lender a commission, payable in arrears quarterly on the last
Business Day of each March, June, September and December,
commencing December 31, 1996, and on the earliest to occur of the
full drawing, expiration, termination or cancellation of any such
Letter of Credit and on the Working Capital Termination Date, on
such Lender's Pro Rata Share of the average daily aggregate
Available Amount during such quarter of all Letters of Credit,
including, without limitation, all Existing Letters of Credit,
outstanding from time to time at the rate per annum equal to the
Applicable Margin then in effect for Eurodollar Advances under
the Working Capital Facility. To the extent that the Borrower
may have prepaid any letter of credit fees to Fleet prior to the
date of this Agreement in respect of the Existing Letters of
<PAGE>
Credit, promptly following the Closing Date Fleet shall return to
the Borrower any and all such fees which may relate to periods
subsequent to the Closing Date.
(ii) The Borrower shall pay to the Issuing Bank, for
its own account, such commissions, issuance fees, fronting fees,
transfer fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit as the
Borrower and the Issuing Bank shall agree.
(e) Administrative Agent's Fees. The Borrower shall pay to
the Administrative Agent for its own account such fees as may
from time to time be agreed between the Borrower and the
Administrative Agent.
SECTION 2.09. Conversion of Advances.
(a) Optional. The Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 11:00
A.M. (Buffalo, New York time) on the third (3rd) Business Day
prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.07 and 2.10, Convert all or any portion
of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Prime Rate Advances
shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Prime Rate Advances
into Eurodollar Rate Advances shall be in an amount not less than
the minimum amount specified in Section 2.01(c), no Conversion of
any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be
made ratably among the appropriate Lenders in accordance with
their Commitments under such Facility. Each such notice of
Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be
Converted and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for such
Advances. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Advances comprising
any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $1,000,000, such Advances shall
automatically Convert into Prime Rate Advances.
(ii) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the appropriate Lenders,
whereupon each such Eurodollar Rate Advance will automatically,
on the last day of the then existing Interest Period therefor,
Convert into a Prime Rate Advance.
<PAGE>
(iii) Upon the occurrence and during the continuance
of any Default, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Prime Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change
in reserve requirements included in the Eurodollar Rate Reserve
Percentage, or in the interpretation of any law or regulation, or
(ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the cost
to any Lender Party of agreeing to make or of making, funding or
maintaining Eurodollar Rate or Prime Rate Advances or of agreeing
to issue or of issuing or maintaining Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit
Advances (excluding for purposes of this Section 2.10 any such
increased costs resulting from (x) Taxes or Other Taxes (as to
which Section 2.12 shall govern) and (y) changes in the basis of
taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof),
then the Borrower shall from time to time, upon demand by such
Lender Party (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such
Lender Party for such increased cost; provided, however, that a
Lender Party claiming additional amounts under this Section
2.10(a) agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office if the making of
such a designation would avoid the need for, or reduce the amount
of, such increased cost that may thereafter accrue and would not,
in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the
amount of such increased cost, submitted to the Borrower by such
Lender Party, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If, due to either (i) the introduction of or any change
in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of
law), there shall be any increase in the amount of capital
required or reasonably expected to be maintained by any Lender
Party or any corporation controlling such Lender Party as a
result of or based upon the existence of such Lender Party's
commitment to lend or to issue Letters of Credit hereunder and
other commitments of such type or the issuance or maintenance of
the Letters of Credit (or similar contingent obligations), then,
upon demand by such Lender Party (with a copy of such demand to
the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from
<PAGE>
time to time as specified by such Lender Party, additional
amounts sufficient to compensate such Lender Party in the light
of such circumstances, to the extent that such Lender Party
reasonably determines such increase in capital to be allocable to
the existence of such Lender Party's commitment to lend or to
issue Letters of Credit hereunder or to the issuance or
maintenance of any Letters of Credit. A certificate as to such
amounts submitted to the Borrower by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under
any Facility, Lenders owed at least 66-2/3 % of the then
aggregate unpaid principal amount thereof notify the
Administrative Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to
such Lenders of making, funding or maintaining their Eurodollar
Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the appropriate
Lenders, whereupon (i) each such Eurodollar Rate Advance under
any Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Prime Rate
Advance and (ii) the obligation of the appropriate Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended until the Administrative Agent shall notify the
Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement,
if the introduction of or any change in or in the interpretation
of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Administrative Agent,
(i) each Eurodollar Rate Advance under each Facility under which
such Lender has a Commitment will automatically, upon such
demand, Convert into a Prime Rate Advance and (ii) the obligation
of the appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lender
has determined that the circumstances causing such suspension no
longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions)
to designate a different Eurodollar Lending Office if the making
of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make
Eurodollar Rate Advances or to continue to find or maintain
Eurodollar Rate Advances and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations.
(a) The Borrower shall make each payment hereunder and
under the Notes, irrespective of any right of counterclaim or
<PAGE>
set-off (except as otherwise provided in Section 2.15), not later
than 11:00 A.M. (Buffalo, New York time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if
such payment by the Borrower is in respect of principal,
interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to
such Lender Parties for the account of their respective
Applicable Lending Offices ratably in accordance with the amounts
of such respective Obligations then payable to such Lender
Parties and (ii) if such payment by the Borrower is in respect of
any Obligation then payable hereunder to one Lender Party, to
such Lender Party for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the
effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date
directly between themselves.
(b) If the Administrative Agent receives funds for applica-
tion to the Obligations under the Loan Documents under
circumstances for which the Loan Documents do not specify the
Advances or the Facility to which, or the manner in which, such
funds are to be applied, the Administrative Agent may, but shall
not be obligated to, elect to distribute such funds to each
Lender Party ratably in accordance with such Lender Party's
proportionate share of the principal amount of all outstanding
Advances and the Available Amount of all Letters of Credit then
outstanding, including, without limitation, all Existing Letters
of Credit then outstanding, in repayment or prepayment of such of
the outstanding Advances or other Obligations owed to such Lender
Party, and for application to such principal installments, as the
Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if
and to the extent payment owed to such Lender Party is not made
when due hereunder or, in the case of a Lender, under the Note
held by such Lender, to charge from time to time against any or
all of the Borrower's accounts with such Lender Party any amount
so due.
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the
basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or
commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission
hereunder shall be conclusive and binding for all purposes,
absent manifest error.
<PAGE>
(e) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case
may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances
to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(f) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment
is due to any Lender Party hereunder that the Borrower will not
make such payment in full, the Administrative Agent may assume
that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to
each such Lender Party on such due date an amount equal to the
amount then due such Lender Party. If and to the extent the
Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed
to such Lender Party together with interest thereon, for each day
from the date such amount is distributed to such Lender Party
until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Notes shall be made, in accordance with Section 2.11, free
and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender Party and the
Administrative Agent, net income taxes that are imposed by the
United States and net income taxes (or franchise taxes imposed in
lieu thereof) that are imposed on such Lender Party or the
Administrative Agent by the state or foreign jurisdiction under
the laws of which such Lender Party or the Administrative Agent
(as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender Party, net income taxes
(or franchise taxes imposed in lieu thereof) that are imposed on
such Lender Party by the state or foreign jurisdiction of such
Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender Party or the
Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower
<PAGE>
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp, documentary, excise, property or similar taxes,
charges or levies that arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration
of, performing under, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for the full amount of Taxes and Other
Taxes, and for the full amount of taxes imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed
on or paid by such Lender Party or the Administrative Agent, as
the case may be, and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or
with respect thereto, except with respect to any Lender Party or
the Administrative Agent, as the case may be, for such a
liability arising from such Lender Party's or the Administrative
Agent's, as the case may be, willful misconduct or gross
negligence. This indemnification shall be made within thirty
(30) days from the date on which such Lender Party or the
Administrative Agent, as the case may be, makes written demand
specifying in reasonable detail the basis therefor.
(d) Within thirty (30) days after the date of any payment
of Taxes, the Borrower shall furnish to the Administrative Agent,
at its address referred to in Section 8.02, the original receipt
of payment thereof or a certified copy of such receipt. In the
case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not
a United States person, if the Borrower determines that no Taxes
are payable in respect thereof, the Borrower shall furnish, or
shall cause such payor to furnish, to the Administrative Agent,
at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from
Taxes. For purposes of this subsection (d) and subsection (e),
the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue
Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the
date of its execution and delivery of this Agreement in the case
of each Initial Lender or Initial Issuing Bank, as the case may
be, and on the date of the Assignment and Acceptance pursuant to
which it became a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing
by the Borrower or the Administrative Agent (but only so long
thereafter as such Lender Party remains lawfully able to do so),
provide each of the Administrative Agent and the Borrower with
two original Internal Revenue Service forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by the
<PAGE>
Internal Revenue Service, certifying that such Lender is exempt
from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or the Notes. If the
forms provided by a Lender Party at the time such Lender Party
first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and
until such Lender Party provides the appropriate form certifying
that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for
periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender
Party becomes a party to this Agreement, the Lender Party
assignor was entitled to payments under subsection (a) in respect
of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in
addition to withholding taxes that may be imposed in the future
or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to the Lender
Party assignee on such date. If any form or document referred to
in this subsection (e) requires the disclosure of information,
other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue
Service form 1001 or 4224, that the Lender Party reasonably
considers to be confidential, the Lender Party shall give notice
thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form
described in subsection (e) (other than if such failure is due to
a change in law occurring after the date on which a form
originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c)
with respect to Taxes imposed by the United States by reason of
such failure; provided, however, that should a Lender Party
become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
(g) Any Lender Party claiming any additional amounts
payable pursuant to this Section 2.12 agrees to use reasonable
efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender
Party shall obtain at any time any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) (i) on account of Obligations due and payable to such
Lender Party hereunder or under the Notes at such time in excess
of its ratable share (according to the proportion of (x) the
<PAGE>
amount of such Obligations due and payable to such Lender Party
at such time to (y) the aggregate amount of the Obligations due
and payable to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations due and
payable to all Lender Parties hereunder or under the Notes at
such time obtained by all the Lender Parties at such time or (ii)
on account of Obligations owing (but not due and payable) to such
Lender Party hereunder and under the Notes at such time in excess
of its ratable share (according to the proportion of (x) the
amount of such Obligations owing to such Lender Party at such
time to (y) the aggregate amount of the Obligations owing (but
not due and payable) to all Lender Parties hereunder and under
the Notes at such time) of payments on account of the Obligations
owing (but not due and payable) to all Lender Parties hereunder
and under the Notes at such time obtained by all of the Lender
Parties at such time, such Lender Party shall forthwith notify
the Administrative Agent thereof and purchase from the other
Lender Parties such participations in the Obligations due and
payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the
excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from
each other Lender Party shall be rescinded and each such other
Lender Party shall repay to the purchasing Lender Party the
purchase price to the extent of such Lender Party's ratable share
(according to the proportion of (x) the purchase price paid to
such Lender Party to (y) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to
such Lender Party's ratable share (according to the proportion of
(x) the amount of such other Lender Party's required repayment to
(y) the total amount of such required repayments to the
purchasing Lender Party) of any interest or other amount paid or
payable by the purchasing Lender Party in respect of the total
amount so recovered.
The Borrower agrees that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section
2.13 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.14. Use of Proceeds. The proceeds of the
Advances and issuances of Letters of Credit shall be available,
and the Borrower shall use such proceeds and Letters of Credit
solely (i) to finance the Acquisition, including payment for the
Shares and Warrants in the Tender Offer and the Merger, (ii) to
pay fees and expenses incurred in connection with the
Acquisition, (iii) to refinance certain Existing Debt of the
Company, and (iv) for other general corporate purposes; provided,
however, that $75,000,000 of the Working Capital Facility shall
be available solely to finance the repurchase of the Senior Notes
pursuant to the "change of control" put set forth in the Senior
Note Indenture. Notwithstanding the foregoing or any other
provision of this Agreement or any other Loan Document, Letters
of Credit in face amounts not to exceed $5,000,000 in the
<PAGE>
aggregate may be issued by the Issuing Bank hereunder in support
of the Existing Marine Midland Letters of Credit or otherwise for
the benefit of Marine Midland in respect of the Existing Marine
Midland Letters of Credit.
SECTION 2.15. Defaulting Lenders. (a) In the event that,
at any one time, (i) any Lender Party shall be a Defaulting
Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance
to the Borrower and (iii) the Borrower shall be required to make
any payment hereunder or under any other Loan Document to or for
the account of such Defaulting Lender, then the Borrower may, so
long as no Default shall occur or be continuing at such time and
to the fullest extent permitted by applicable law, set off and
otherwise apply the obligation of the Borrower to make such
payment to or for the account of such Defaulting Lender against
the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so
set off and otherwise apply its obligation to make any such
payment against the obligation of such Defaulting Lender to make
any such Defaulted Advance on or prior to such date, the amount
so set off and otherwise applied by the Borrower shall constitute
for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date under the
Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance
shall be a Prime Rate Advance and shall be considered, for all
purposes of this Agreement, to comprise part of the Borrowing in
connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01, even if the
other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant
to this subsection (a). The Borrower shall notify the
Administrative Agent at any time the Borrower exercises its right
of set-off pursuant to this subsection (a) and shall set forth in
such notice (i) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender
and (ii) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any
portion of such payment otherwise required to be made by the
Borrower to or for the account of such Defaulting Lender which is
paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower pursuant to this subsection
(a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Amount to the Administrative Agent or any
of the other Lender Parties and (iii) the Borrower shall make any
payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender,
then the Administrative Agent may, on its behalf or on behalf of
such other Lender Parties and to the fullest extent permitted by
applicable law, apply at such time the amount so paid by the
Borrower to or for the account of such Defaulting Lender to the
payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative
<PAGE>
Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the
Administrative Agent shall constitute for all purposes of this
Agreement and the other Loan Documents, payment, to such extent,
of such Defaulted Amount on such date. Any such amount so
applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent
to such other Lender Parties, ratably in accordance with the
respective portions of such Defaulted Amounts payable at such
time to the Administrative Agent and such other Lender Parties
and, if the amount of such payment made by the Borrower shall at
such time be insufficient to pay all Defaulted Amounts owing at
such time to the Administrative Agent and the other Lender
Parties, in the following order of priority:
(i) first, to the Administrative Agent for any
Defaulted Amount then owing to the Administrative Agent; and
(ii) second, to the Lender Parties for any Defaulted
Amounts then owing to such Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such Lender
Parties.
Any portion of such amount paid by the Borrower for the account
of such Defaulting Lender remaining, after giving effect to the
amount applied by the Administrative Agent pursuant to this
subsection (b), shall be applied by the Administrative Agent as
specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall not owe a Defaulted Advance or a Defaulted Amount and (iii)
the Borrower, the Administrative Agent or any other Lender Party
shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such
Defaulting Lender, then the Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by
the Administrative Agent, to the fullest extent permitted by
applicable law, in escrow or the Administrative Agent shall, to
the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with Fleet,
in the name and under the control of the Administrative Agent,
but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest
payable with respect to the credit balance of such account from
time to time, shall be Fleet's standard terms applicable to
escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Adminis-
trative Agent from time to time in accordance with the provisions
of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so
held in escrow from time to time to the extent necessary to make
any Advances required to be made by such Defaulting Lender and to
pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any
<PAGE>
other Lender Party, as and when such Advances or amounts are
required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in
the following order of priority:
(i) first, to the Administrative Agent for any amount
then due and payable by such Defaulting Lender to the Adminis-
trative Agent hereunder;
(ii) second, to the Lender Parties for any amount then
due and payable by such Defaulting Lender to such Lender Parties
hereunder, ratably in accordance with such respective amounts
then due and payable to such Lender Parties; and
(iii) third, to the Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender
shall, at any time, cease to be a Defaulting Lender, any funds
held by the Administrative Agent in escrow at such time with
respect to such Lender Party shall be distributed by the
Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at
such time under this Agreement and the other Loan Documents in
such manner as the Administrative Agent shall reasonably direct.
(d) The rights and remedies against a Defaulting Lender
under this Section 2.15 are in addition to other rights and
remedies that the Borrower may have against such Defaulting
Lender with respect to any Defaulted Advance and that the
Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.16 Regulation U and Regulation G
(a) Each Lender Party hereby warrants and represents that
the loan value of the Collateral (after giving effect to 50% of
the value of the Collateral consisting of Margin Stock) is
sufficient for it to lend its full Commitment hereunder.
(b) Each Lender Party shall be responsible for its
compliance hereunder with Regulation U and Regulation G, if and
as applicable, and the Administrative Agent shall have no
responsibility with respect to any such compliance by any Lender
Party.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of
the Issuing Bank to issue a Letter of Credit (other than the
Existing Letters of Credit, which are already issued and
outstanding on the date hereof) on the occasion of the Initial
<PAGE>
Extension of Credit hereunder is subject to the satisfaction of
each of the following conditions precedent before or concurrently
with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or
before the day of the Initial Extension of Credit the following,
each dated such day (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent and the
Lenders, and in sufficient copies (except for the Notes), for
each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) A security agreement in substantially the form of
Exhibit G granting to the Administrative Agent, for the ratable
benefit of the Lenders, a first and only priority security
interest in all of the personal property and assets of the
Borrower and each Guarantor (together with each other security
agreement delivered pursuant to Section 5.01(m), in each case as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, each a "Security Agreement"), duly
executed by the Borrower and each Guarantor, together with:
(A) acknowledgment copies or stamped receipt
copies of proper financing statements, duly filed before the
day of the Initial Extension of Credit (or other
confirmation reasonably satisfactory to the Administrative
Agent of such filing) under the Uniform Commercial Code of
all jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the
first and only priority liens and security interests created
under the Security Agreement, covering the Collateral
described in the Security Agreement;
(B) completed requests for information, dated on
or before the date of the Initial Extension of Credit,
listing the financing statements referred to in clause (A)
above and all other effective financing statements filed in
the jurisdictions referred to in clause (A) above that name
the Borrower, or any other Loan Party as debtor, together
with copies of such other financing statements;
(C) evidence of the completion of all other re-
cordings and filings of or with respect to the Security
Agreement that the Administrative Agent may deem necessary
or desirable in order to perfect and protect the Liens
created thereby;
(D) evidence of the insurance required by the
terms of the Security Agreement;
(E) copies of the Assigned Agreements, if any,
referred to in the Security Agreement, together with a
consent to such assignments, if any, in substantially the
form of Exhibit C to the Security Agreement, duly executed
by each party to such Assigned Agreements other than the
Borrower;
<PAGE>
(F) certificates representing the Pledged Shares
referred to in the Security Agreement, accompanied by
undated stock powers executed in blank; and
(G) evidence that all other action that the
Administrative Agent may deem necessary or desirable in
order to perfect and protect the first and only priority
liens and security interests created under the Security
Agreement has been taken.
(iii) An intellectual property security agreement
in substantially the form of Exhibit H hereto granting to
the Administrative Agent for the ratable benefit of the
Lenders a first and only priority security interest in all
of the Borrower's and each Guarantor's intellectual property
(together with each other intellectual property security
agreement delivered pursuant to Section 5.01(m), in each
case as amended, supplemented or otherwise modified from
time to time in accordance with its terms, each an
"Intellectual Property Security Agreement"), duly executed
by the Borrower and each Guarantor, together with evidence
that all action that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the
first and only priority liens and security interests created
under the Intellectual Property Security Agreement has been
taken.
(iv) A guaranty in substantially the form of Exhibit I
hereto (as hereafter amended, supplemented or otherwise modified
from time to time in accordance with its terms, the "Guaranty"),
duly executed by each Significant Subsidiary of the Borrower.
(v) Certified copies of resolutions of the Board of
Directors of the Borrower and each other Loan Party approving the
Acquisition, the Merger, this Agreement, the Notes, and each
other Loan Document and Acquisition Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals
and consents, if any, with respect to the Acquisition, the
Merger, this Agreement, the Notes, and each other Loan Document
and Acquisition Document.
(vi) A copy of the charter of the Borrower, the Company
and each other Loan Party and each amendment thereto, certified
(as of a date reasonably near the date of the Initial Extension
of Credit) by the Secretary of State of the jurisdiction of its
incorporation as being a true and correct copy thereof.
(vii) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated within five
(5) Business Days of the date of the Initial Extension of Credit,
listing the charter of the Borrower, the Company and each other
Loan Party and each amendment thereto on file in its office and
certifying that (A) such amendments are the only amendments to
the Borrower's, the Company's or such other Loan Party's charter
on file in its office, (B) the Borrower, the Company and each
other Loan Party have paid all franchise taxes to the date of
<PAGE>
such certificate and (C) the Borrower, the Company and each other
Loan Party are duly incorporated and in good standing under the
laws of the State of the jurisdiction of its incorporation.
(viii) A copy of a certificate of the Secretary of
State of each State listed on Schedule 3.01(a)(viii), dated
reasonably near the date of the Initial Extension of Credit,
stating that the Borrower, the Company and each other Loan Party
are duly qualified and in good standing as foreign corporations
in such State and have filed all annual reports required to be
filed to the date of such certificate.
(ix) A certificate of the Borrower, the Company and
each other Loan Party signed on behalf of the Borrower, the
Company or such other Loan Party, as the case may be, by a
Responsible Officer and the Secretary or an Assistant Secretary
of the Borrower, the Company or such other Loan Party, as the
case may be, dated the date of the Initial Extension of Credit
(the statements made in such certificate shall be true on and as
of the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter of the Borrower,
the Company or such other Loan Party since the date of the
Secretary of State's certificate referred to in Section
3.01(a)(vii), (B) a true and correct copy of the bylaws of the
Borrower, the Company and each other Loan Party as in effect on
the date of the Initial Extension of Credit, (C) the due
incorporation and good standing of the Borrower, the Company and
each other Loan Party as a corporation organized under the laws
of the jurisdiction of its incorporation, and the absence of any
proceeding for the dissolution or liquidation of the Borrower,
the Company or any other Loan Party, (D) the truth of the
representations and warranties contained in the Information
Memorandum, any Pre-Commitment Information, the Loan Documents
and the Acquisition Documents as though made on and as of the
date of the Initial Extension of Credit and (E) the absence of
any event occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.
(x) A certificate of the Secretary or an Assistant
Secretary of the Borrower, the Company and each other Loan Party
certifying the names and true signatures of the officers of the
Borrower, the Company and each other Loan Party authorized to
sign this Agreement, the Notes, each other Loan Document to which
they are or are to be parties and the other documents to be
delivered hereunder and thereunder.
(xi) Such financial, business and other information
regarding the Borrower, the Company, each other Loan Party and
each such Person's Subsidiaries as any of the Lender Parties
shall have reasonably requested, including, without limitation,
information as to possible contingent liabilities, tax matters,
Environmental Actions, Environmental Permits, obligations under
Plans, Multiemployer Plans and Welfare Plans, collective
bargaining agreements and other arrangements with employees,
audited annual financial statements dated March 31, 1996, interim
financial statements dated the end of the most recent fiscal
quarter for which financial statements are available (or, in the
<PAGE>
event the Lender Parties' due diligence review reveals material
changes since such financial statements, as of a later date
within thirty (30) days of the day of the Initial Extension of
Credit), pro forma financial statements as to the Borrower, the
Company and each of the other Loan Parties and forecasts prepared
by management the Borrower, all in form and substance reasonably
satisfactory to the Lender Parties.
(xii) A Notice of Borrowing and a Borrowing Base
Certificate.
(b) The Lender Parties shall be satisfied with the
corporate and legal structure and capitalization of each Loan
Party and each of its Subsidiaries (and with the proposed capital
structure of the Company after the Merger), including, without
limitation, the terms and conditions of the charter, by-laws and
each class of capital stock of each Loan Party and each such
Subsidiary and of each agreement or instrument relating to such
structure or capitalization.
(c) The Lender Parties shall be satisfied that all Existing
Debt, other than the Debt identified on Schedule 4.01(bb) (the
"Surviving Debt"), has been (or, upon consummation of the Merger
will be) prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and that all such Surviving Debt shall
be on terms and conditions satisfactory to the Lender Parties.
(d) There shall have occurred no material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of either (i) the Borrower
and its Subsidiaries, taken as a whole, since March 31, 1996, or
(ii) the Company and its Subsidiaries, taken as a whole since
June 30, 1995.
(e) Other than the litigation disclosed in Schedule 3.01(e)
(the "Disclosed Litigation"), there shall exist no action, suit,
investigation, litigation or proceeding pending or threatened in
any court or before any arbitrator or governmental or regulatory
agency or authority that (i) could reasonably be expected to (A)
have a material adverse effect on the business, condition (finan-
cial or otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole,
or the Company and its Subsidiaries, taken as a whole, (B)
materially adversely affect the ability of the Borrower or any
Guarantor to perform its obligations under the Loan Documents or
(C) materially adversely affect the rights and remedies of the
Administrative Agent and the Lender Parties under the Loan
Documents or (ii) purports to materially adversely affect any
aspect of the Transaction or the Facilities (collectively, a
"Material Adverse Effect"); and there shall have been no material
adverse change in the status, or financial effect on the Borrower
or any of its Subsidiaries or the Company or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(e).
<PAGE>
(f) All governmental and third party consents and approvals
necessary in connection with each aspect of the Acquisition, the
Merger, and the Facilities shall have been obtained (without the
imposition of any conditions that are not acceptable to the
Initial Lenders) and shall remain in effect; all applicable
waiting periods shall have expired without any adverse action
being taken by any competent authority; and no law or regulation
shall be applicable in the reasonable judgment of the Lender
Parties that restrains, prevents or imposes materially adverse
conditions upon any aspect of the Acquisition, the Merger or the
Facilities.
(g) The Lender Parties shall have completed a due diligence
investigation of the Company and its Subsidiaries in scope, and
with results, satisfactory to the Lender Parties; the Borrower
and each of the Guarantors shall have given the Administrative
Agent such access to their respective books and records as the
Administrative Agent may have requested in order to carry out its
investigations, appraisals and analyses, including, but not
limited to, calculation of Eligible Receivables and Eligible
Inventory; and the Lenders shall have received all additional
financial, business and other information regarding the Borrower,
the Company and their respective Subsidiaries and properties as
they shall have reasonably requested. All of the information
provided by or on behalf of the Borrower or any of its
Subsidiaries or by or on behalf of the Company or any of its
Subsidiaries to the Administrative Agent and the Lender Parties
prior to their commitment in respect of the Facilities (the
"Pre-Commitment Information") shall be true and correct in all
material aspects, and no development or change shall have
occurred, and no additional information shall have come to the
attention of the Administrative Agent or the Lenders, that (i)
has resulted in or could reasonably be expected to result in a
material change in, or material deviation from, the
Pre-Commitment Information or (ii) has had or could reasonably be
expected to have a Material Adverse Effect.
(h) The Borrower and each of the Guarantors shall have
delivered letters, in form and substance satisfactory to the
Administrative Agent, attesting to the Solvency (as hereinafter
defined) of the Borrower or such Guarantor, as the case may be,
in each case individually and together with its Subsidiaries,
taken as a whole, immediately before and immediately after giving
effect to the Acquisition, from their respective chief financial
officers. As used herein, the term "Solvency" of any person
means (i) the fair value of the property of such person exceeds
its total liabilities (including, without limitation, contingent
liabilities), (ii) the present fair saleable value of the assets
of such person is not less than the amount that will be required
to pay its probable liability on its debts as they become
absolute and matured, (iii) such person does not intend to, and
does not believe that it will, incur debts or liabilities beyond
its ability to pay as such debts and liabilities mature and (iv)
such person is not engaged, and is not about to engage, in
business or a transaction for which its property would constitute
an unreasonably small capital.
<PAGE>
(i) The Borrower shall have demonstrated to the
Administrative Agent's reasonable satisfaction (i) whether the
operations of the Borrower and its Subsidiaries and the Company
and its Subsidiaries comply in all material respects with
applicable Environmental Laws and health and safety statutes and
regulations, including, without limitation, regulations
promulgated under the Federal Resource Conservation and Recovery
Act; (ii) whether such operations are the subject of any
Environmental Actions requiring an expenditure which could have a
Material Adverse Effect on the Borrower and its Subsidiaries,
taken as a whole, or the Company and its Subsidiaries, taken as a
whole, to respond to such Environmental Actions; (iii) whether
the Borrower or any of the Guarantors has or could reasonably be
expected to have any contingent liability which could have a
Material Adverse Effect on the Borrower and its Subsidiaries,
taken as a whole, or the Company and its Subsidiaries, taken as a
whole, in connection with any Environmental Action; (iv) that the
Borrower, the Company and their respective Subsidiaries have
complied in all material respects with applicable Environmental
Laws in connection with the Acquisition; and (v) the Borrower has
completed such environmental audits and investigations (including
"Phase I" environmental audits), as the Administrative Agent may
reasonably request with respect to the operations of the Borrower
and its Subsidiaries and the Company and its Subsidiaries and
such audits and investigations have not uncovered any condition
or conditions not disclosed in the Pre-Commitment Information
which could be reasonably expected to have a Material Adverse
Effect on the Borrower and its Subsidiaries, taken as a whole, or
the Company and its Subsidiaries, taken as a whole.
(j) The Lenders shall be satisfied that (i) the Borrower
and its Subsidiaries will be able to meet their respective
obligations under all employee and retiree welfare plans, (ii)
the employee benefit plans of the Borrower and its Subsidiaries
and of the Company and its Subsidiaries are, in all material
respects, funded in accordance with the minimum statutory
requirements, (iii) no material "reportable event" (as defined in
ERISA, but excluding events for which reporting has been waived)
has occurred as to any such employee benefit plan and (iv) no
termination of, or withdrawal from, any such employee benefit
plan, including, without limitation, any Multiemployer Plan, has
occurred or is contemplated that could reasonably be expected to
result in a material liability. The Borrower shall have
delivered to the Administrative Agent copies of each employment
agreement and other compensation arrangement with each executive
officer of each Loan Party.
(k) The Lenders shall be satisfied with the amount, types
and terms and conditions of all insurance maintained by or, after
giving effect to the consummation of the Acquisition, to be
maintained by, the Borrower and its Subsidiaries, and the Lenders
shall have received endorsements naming the Administrative Agent,
on behalf of the Lenders, as an additional insured under all
insurance policies to be maintained with respect to the
properties of the Borrower and its Subsidiaries forming any part
of the Lenders' Collateral under the Security Agreement and the
other Loan Documents.
<PAGE>
(l) The Lenders shall have received satisfactory opinions
of counsel for the Borrower, the Company and the Guarantors, and
of local and special counsel to the extent requested by the
Administrative Agent, as to the transactions contemplated hereby.
(m) There shall exist no Default or Event of Default under
any of the Loan Documents, and all legal matters incident to the
Initial Extension of Credit shall be satisfactory to counsel for
the Administrative Agent.
(n) All accrued fees and expenses of the Administrative
Agent and the Lenders (including the fees and expenses of counsel
for the Administrative Agent and local counsel for the Admin-
istrative Agent) shall have been paid.
(o) The Tender Offer shall have been consummated (prior to
the initial Extension of Credit) pursuant to the terms and
conditions of the Offer to Purchase (and none of the material
terms or conditions of the Tender Offer shall have been waived or
modified except with the consent of the Administrative Agent and
the Required Lenders) and in compliance with all applicable laws
and with all necessary consents and approvals.
(p) The Administrative Agent shall have received evidence
that L Acquisition shall have acquired, no later than
concurrently with the Initial Extension of Credit, not less than
a majority, on a fully diluted basis, of the Shares and there
shall not have been any material change in the number of Shares
and Warrants outstanding (on a fully diluted basis) since August
24, 1996.
(q) All Advances made under this Agreement shall be in full
compliance with all applicable requirements of law, including,
without limitation, Regulations G, T, U, and X, and the
Administrative Agent shall have received, from each Lender, a
properly completed and duly executed Form FR U-1 and Form FR G-3,
as applicable.
(r) The Merger Agreement shall be in full force and effect.
(s) The Administrative Agent shall be satisfied that there
are no state takeover laws and no supermajority charter
provisions applicable to the Acquisition, or that any conditions
to avoiding such restrictions have been satisfied, and the
Administrative Agent shall have received certified copies of each
of the Acquisition Documents, each of which shall be satisfactory
to the Lenders and in full force and effect.
(t) The Administrative Agent shall have received a duly
executed and delivered counterpart of landlord waivers from all
landlords and leasehold mortgage holders with respect to any
Inventory located at a location that is not owned by the
Borrower, as deemed necessary or desirable in the Administrative
Agent's sole discretion, to preserve or otherwise in respect of
the Administrative Agent's rights in Collateral.
(u) The Administrative Agent shall have received such other
approvals, opinions or documents as any Lender through the
<PAGE>
Administrative Agent may reasonably request, and all legal
matters incident to such Borrowing shall be satisfactory to the
Administrative Agent.
SECTION 3.02. Conditions to Advances to be Made on the
Merger Date. The obligation of each Lender to make any Advance
on the Merger Date to finance the Merger is subject to the
satisfaction of each of the following conditions precedent:
(a) Each of the conditions precedent listed in Section 3.01
shall have been satisfied or waived in accordance with this
Agreement.
(b) The Administrative Agent shall have received evidence,
in form and substance reasonably satisfactory to it, that all
transactions in connection with the Merger have been consummated
under the terms and conditions of the Merger Agreement and in
compliance with all relevant laws and regulations and that the
Merger has become effective.
(c) Prior to or concurrently with the making of any
Advances on the Merger Date, all conditions set forth in the
Merger Agreement shall have been satisfied.
(d) The Administrative Agent shall have received, in
sufficient copies for each Lender, an opinion of counsel to the
Borrower and L Acquisition relating to the matters set forth in
(b) and (c) above, in form and substance reasonably satisfactory
to the Administrative Agent, addressed to the Administrative
Agent and the Lenders.
(e) The Administrative Agent shall have received a
certificate signed by a duly authorized officer of the Borrower,
dated the Merger Date, certifying that:
(i) the representations and warranties contained in
each Loan Document are correct on and as of such date, both
before and after giving effect to such Borrowings and to the
application of the proceeds therefrom, as though made on and as
of such date; and
(ii) no event has occurred and is continuing, or would
result from such Borrowings or from the application of the
proceeds therefrom, that constitutes a Default.
(f) The Administrative Agent shall have received such other
approvals or documents as the Administrative Agent may reasonably
request, and all legal matters incident to such Borrowing shall
be satisfactory to the Administrative Agent.
SECTION 3.03. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each appropriate Lender to make an
Advance (other than a Letter of Credit Advance made by the
Issuing Bank or a Working Capital Lender pursuant to Section
2.03(c) and a Swing Line Advance made by a Working Capital Lender
pursuant to Section 2.02(b)), and the obligation of the Issuing
Bank to issue a Letter of Credit (including the initial issuance
<PAGE>
thereof) or renew a Letter of Credit and the right of the
Borrower to request the issuance or renewal of a Letter of
Credit, shall each be subject to the further conditions precedent
that on the date of each such Borrowing or issuance or renewal:
(a) Each of the conditions precedent listed in Section 3.01
shall have been satisfied or waived in accordance with this
Agreement.
(b) In the case of any Advance to be made on or after the
Merger Date, each of the conditions listed in Section 3.02 shall
have been satisfied or waived in accordance with this Agreement.
(c) The following statements shall be true and the
Administrative Agent shall have received a certificate signed by
a duly authorized officer of the Borrower, dated the date of such
Borrowing or issuance or renewal, stating that (and each of the
giving of the applicable Notice of Borrowing, Notice of Swing
Line Borrowing or Notice of Issuance or Notice of Renewal and the
acceptance by the Borrower of the proceeds of a Borrowing or of a
Letter of Credit or the renewal of a Letter of Credit shall
constitute a representation and warranty by the Borrower that
both on the date of such notice and on the date of such Borrowing
or issuance or renewal such statements are true):
(i) the representations and warranties contained in
each Loan Document are correct on and as of such date, before and
after giving effect to such Borrowing or issuance or renewal and
to the application of the proceeds therefrom, as though made on
and as of such date;
(ii) no event has occurred and is continuing, or would
result from such Borrowing or issuance or renewal or from the
application of the proceeds therefrom, that constitutes a
Default; and
(iii) for each Working Capital Advance, Swing Line
Advance made by the Swing Line Bank or issuance or renewal of any
Letter of Credit, the Borrowing Base exceeds the aggregate
principal amount of the Working Capital Advances plus Swing Line
Advances plus Letter of Credit Advances plus the aggregate
Available Amount of all Letters of Credit then outstanding after
giving effect to such Advance or issuance or renewal,
respectively.
(d) The Administrative Agent shall have received such other
approvals, opinions or documents as any appropriate Lender
through the Administrative Agent may reasonably request, and all
legal matters incident to such Borrowing or issuance of such
Letter of Credit shall be satisfactory to counsel for the
Administrative Agent.
SECTION 3.04. Determinations Under Section 3.01 and 3.02.
For purposes of determining compliance with the conditions
specified in Section 3.0l or 3.02, as the case may be, each
Lender Party shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter
<PAGE>
required thereunder to be consented to or approved by or
acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the
transactions contemplated by the Loan Documents shall have
received written notice from such Lender Party prior to the
Initial Extension of Credit or the extension of credit on the
Merger Date, as the case may be, specifying its objection
thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in
good standing as a foreign corporation in each other jurisdiction
in which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed could not
reasonably be expected to have a Material Adverse Effect and
(iii) has all requisite corporate power and authority (including,
without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as
of the Closing Date, after giving effect to the Borrower's
satisfaction of the conditions precedent set forth in Sections
3.01(o) and (p) of this Agreement, and as to each such
Subsidiary, the jurisdiction of its incorporation, the number of
shares of each class of capital stock authorized, and the number
outstanding, on the date hereof and the percentage of the
outstanding shares of each such class owned (directly or
indirectly) by such Loan Party and the number of shares covered
by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the
outstanding capital stock of all of such Subsidiaries has been
validly issued, is fully paid and non-assessable and is owned by
such Loan Party or one or more of its Subsidiaries free and clear
of all Liens, except those created under the Collateral
Documents. Each such Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (ii) is duly qualified
and in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed,
except where the failure to so qualify or be licensed could not
reasonably be expected to have a Material Adverse Effect, and
(iii) has all requisite corporate power and authority (including,
<PAGE>
without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted.
(c) The execution, delivery and performance by each Loan
Party of this Agreement, the Notes, each other Loan Document and
each Acquisition Document to which it is or is to be a party, and
the consummation of the Acquisition and the Merger and the other
transactions contemplated hereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's
charter or bylaws, (ii) violate any law (including, without
limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970), rule, regulation (including, without
limitation, Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in
the breach of, or constitute a default under, any material
contract, loan agreement, indenture, mortgage, deed of trust,
lease or other material instrument or agreement binding on or
affecting any Loan Party, any of its Subsidiaries or any of their
respective properties or (iv) except for the Liens created under
the Collateral Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries. No Loan
Party or any of its Subsidiaries is in violation of any such law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument or agreement, the violation or breach of which could
reasonably be expected to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body or any other third party is required for (i) the
due execution, delivery, recordation, filing or performance by
any Loan Party of this Agreement, the Notes or any other Loan
Document or any Acquisition Document to which it is or is to be a
party, or for the consummation of the Acquisition, the Merger or
the other transactions contemplated hereby, (ii) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first and only
priority nature thereof) or (iv) the exercise by the
Administrative Agent or any Lender Party of its rights under the
Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d), all of which have been duly obtained, taken,
given or made and are in full force and effect. All applicable
waiting periods in connection with the Acquisition, the Merger
and the other transactions contemplated hereby have expired
without any action having been taken by any competent authority
restraining, preventing or imposing materially adverse conditions
<PAGE>
upon the Acquisition, the Merger, the transactions contemplated
hereby or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of
them.
(e) This Agreement and each Acquisition Document has been,
and each of the Notes and each other Loan Document has been or
when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement and
each Acquisition Document is, and each of the Notes and each
other Loan Document has been or when delivered hereunder will be,
the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with
its terms.
(f) (i) The Consolidated and consolidating balance sheets
of the Borrower and its Subsidiaries as at March 31, 1996, and
the related Consolidated and consolidating statements of income
and Consolidated and consolidating statements of cash flows of
the Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by (in the case of such Consolidated financial
statements) an opinion of Ernst & Young LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower
and its Subsidiaries as at June 30, 1996 and the related
Consolidated statement of income and Consolidated statement of
cash flows of the Borrower and its Subsidiaries for the three
months then ended, duly certified by the chief financial officer
of the Borrower, copies of which have been furnished to each
Lender Party, fairly present, subject, in the case of said
balance sheet as at June 30, 1996 and said statements of income
and cash flows for the three months then ended, to normal
year-end audit adjustments, the Consolidated (and, with respect
to the balance sheets dated March 31, 1996, consolidating)
financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated (and, with respect to the
statements of income dated March 31, 1996, consolidating) results
of the operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with generally
accepted accounting principles applied on a consistent basis,
and, since March 31, 1996, there has been no Material Adverse
Change.
(ii) The Consolidated and consolidating balance sheets
of the Company and its Subsidiaries as at June 30, 1996, and the
related Consolidated and consolidating statements of income and
Consolidated and consolidating statements of cash flows of the
Company and its Subsidiaries for the fiscal year then ended,
accompanied by (in the case of such Consolidated financial
statements) an opinion of Arthur Andersen LLP, independent public
accountants, copies of which have been furnished to each Lender
Party, fairly present the Consolidated and consolidating
financial condition of the Company and its Subsidiaries as at
such dates and the Consolidated and consolidating results of
operations of the Company and its Subsidiaries for the fiscal
year of the Company ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent
basis, and since June 30, 1996, there has been no Material
Adverse Change.
<PAGE>
(g) The Consolidated pro forma balance sheet of the
Borrower and its Subsidiaries as at the Merger Date, and the
related Consolidated pro forma statement of income and cash flows
of the Borrower and its Subsidiaries for the period then ended,
certified by the chief financial officer of the Borrower, copies
of which have been furnished to each Lender Party, fairly present
the Consolidated pro forma financial condition of the Borrower
and its Subsidiaries as at such date and the Consolidated pro
forma results of operations of the Borrower and its Subsidiaries
for the period ended on such date, in each case after giving
effect to the Acquisition and the other transactions contemplated
hereby, all in accordance with GAAP.
(h) None of the Information Memorandum, any Pre-Commitment
Information or any information, exhibit or report furnished by
any Loan Party to the Administrative Agent or any Lender Party in
connection with the Loan Documents or pursuant to the terms of
the Loan Documents contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(i) Other than the Disclosed Litigation, there is no
action, suit, investigation, litigation or proceeding affecting
the Borrower, the Company, any other Loan Party or any of their
respective Subsidiaries, including, without limitation, any
Environmental Action, pending or threatened before any court,
governmental agency or arbitrator that could reasonably be
expected to have a Material Adverse Effect, and there has been no
material adverse change in the status, or financial effect on any
Loan Party or any of its Subsidiaries, of the Disclosed
Litigation from that described on Schedule 3.01(e).
(j) Neither the Borrower nor the Company nor any of their
respective Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(k) Except as set forth on Schedule 4.01(k) hereto, none of
the Borrower, the Company or any of their ERISA Affiliates
maintains or has maintained any Plans or Multiemployer Plans.
Set forth on Schedule 4.01(k) is a complete and accurate list of
all Welfare Plans and all defined contribution plans in respect
of which any Loan Party could have liability.
(l) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.03, none of the
Borrower, the Company, any of the other Loan Parties or any of
their respective Subsidiaries has any material liability with
respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No.
106.
(m) Neither the business nor the properties of any Loan
Party or any of its Subsidiaries are affected by any fire,
explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by
insurance) that could reasonably be expected to have a Material
Adverse Effect.
<PAGE>
(n) The operations and properties of each Loan Party and
each of its Subsidiaries comply in all known material respects
with all applicable Environmental Laws and Environmental Permits,
all known past non-compliance with such Environmental Laws and
Environmental Permits has been resolved without ongoing
obligations or costs that could reasonably be expected to have a
Material Adverse Effect, and no circumstances exist that could
reasonably be expected to (i) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any
of their properties that could reasonably be expected to have a
Material Adverse Effect or (ii) cause any such property to be
subject to any material restrictions on ownership, occupancy, use
or transferability under any Environmental Law.
(o) Except as disclosed in the environmental assessment
reports listed on Schedule 4.01(o) hereto and except for any or
all disclosures which would not either individually or in the
aggregate be material to the Borrower or any other Loan Party,
(i) none of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed
or proposed for listing on the NPL or on the CERCLIS or any
analogous foreign, state or local list or is adjacent to any such
property; (ii) there are no and, to the best of its knowledge,
never have been any underground or aboveground storage tanks or
any surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or, to the best of its
knowledge, have been treated, stored or disposed on any property
currently owned or operated by any Loan Party or any of its
Subsidiaries or on any property formerly owned or operated by any
Loan Party or any of its Subsidiaries; (iii) there is no friable
asbestos or friable asbestos-containing material on any property
currently owned or operated by any Loan Party or any of its
Subsidiaries; and (iv) Hazardous Materials have not been
released, discharged or disposed of on any property currently
owned or operated by any Loan Party or any of its Subsidiaries,
or any property formerly owned or operated by any Loan Party or
any of its Subsidiaries or, to the best of its knowledge, any
property owned or operated or formerly owned or operated by the
Company or any of its Subsidiaries.
(p) Except as disclosed on Schedule 4.01(o), neither any
Loan Party nor any of its Subsidiaries is undertaking, and has
not completed, either individually or together with other
potentially responsible parties, any investigation or assessment
or Remedial, Response or Removal action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials
at any site, location or operation, either voluntarily or
pursuant to the order of any governmental or regulatory authority
or the requirements of any Environmental Law that could
reasonably be expected to have a Material Adverse Effect; and all
Hazardous Materials generated, used, treated, handled or stored
at, or transported to or from, any property currently owned or
operated by any Loan Party or any of its Subsidiaries or any
property formerly owned or operated by any Loan Party or any of
its Subsidiaries or, to the best of its knowledge, any property
owned or operated or formerly owned or operated by the Company or
any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to any Loan
Party or any of its Subsidiaries.
<PAGE>
(q) Except as set forth on Schedule 4.01(q), neither any
Loan Party nor any of its Subsidiaries nor the Company nor any of
its Subsidiaries is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument or
subject to any charter or corporate restriction that could
reasonably be expected to have a Material Adverse Effect.
(r) The Collateral Documents create in favor of the
Administrative Agent, for the ratable benefit of the Lenders, a
valid and perfected first priority security interest in the
Collateral (which Collateral includes all of the assets and
personal property, whether now owned or hereafter acquired and
all of the products and proceeds of any of the foregoing, of the
Borrower and each Guarantor, and all of the outstanding capital
stock of each of the Borrower's Domestic Subsidiaries and such of
the Borrower's Foreign Subsidiaries as are listed on Schedule
4.01(r)), securing the payment of the Obligations, and all
filings and other actions necessary or reasonably desirable to
perfect and protect such security interest have been duly taken.
The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and
security interests created or expressly permitted under the Loan
Documents.
(s) Each Loan Party and each of its Subsidiaries has filed,
has caused to be filed or has been included in all tax returns
(Federal, state, local and foreign) required to be filed and has
paid all taxes shown thereon to be due, together with applicable
interest and penalties.
(t) Set forth on Schedule 4.01(t) is a complete and
accurate list of each taxable year of each Loan Party and each of
its Subsidiaries for which Federal income tax returns have been
filed and for which the expiration of the applicable statute of
limitations for assessment or collection has not occurred by
reason of extension or otherwise (an "Open Year").
(u) There is no unpaid amount of adjustments to the Federal
income tax liability of each Loan Party and each of its
Subsidiaries proposed by the Internal Revenue Service with
respect to Open Years. No issues have been raised by the
Internal Revenue Service in respect of Open Years that, in the
aggregate, could reasonably be expected to have a Material
Adverse Effect.
(v) There is no unpaid amount of adjustments to the state,
local and foreign tax liability of each Loan Party and its
Subsidiaries proposed by any state, local or foreign taxing
authorities (other than amounts arising from adjustments to
Federal income tax returns). No issues have been raised by such
taxing authorities that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(w) The Merger will not be taxable to the Company or any of
its Subsidiaries.
(x) Except to the extent effected by the consummation of
the Acquisition, no "ownership change" as defined in Section
382(g) of the Internal Revenue Code, and no event that would
<PAGE>
result in the application of the "separate return limitation
year" or "consolidated return change of ownership" limitations
under the Federal income tax consolidated return regulations, has
occurred with respect to any Loan Party.
(y) Neither any Loan Party nor any of its Subsidiaries is
an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act
of 1940, as amended. Neither the making of any Advances, nor the
issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Borrower, nor the
consummation of the Acquisition or the other transactions
contemplated hereby, will violate any provision of such Act or
any rule, regulation or order of the Securities and Exchange
Commission thereunder or any takeover, disclosure or other
federal, state or foreign securities law or Regulations G, T, U
or X of the Federal Reserve Board. The Borrower is not subject
to regulation under any federal, state or foreign statute or
regulation which limits its ability to incur Indebtedness.
(z) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(aa) Set forth on Schedule 4.01(aa) is a complete and
accurate list of all Existing Debt the principal amount of which
is greater than $1,000,000 (other than Surviving Debt), showing
as of the date hereof the principal amount outstanding
thereunder, the maturity date thereof and the amortization
schedule therefor.
(bb) Set forth on Schedule 4.01(bb) is a complete and
accurate list of all Surviving Debt the principal amount of which
is greater than $1,000,000, showing as of the date hereof the
principal amount outstanding thereunder, the maturity date
thereof and the amortization schedule therefor.
(cc) Set forth on Schedule 4.01 (cc) is a complete and
accurate list of all real property owned by any Loan Party or any
of its Subsidiaries or in which any Loan Party has an interest as
a contract vendee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, record
owner and book and estimated fair value thereof. Each Loan Party
or such Subsidiary has good, marketable and insurable fee simple
title to such real property, free and clear of all Liens, other
than Permitted Liens.
(dd) Set forth on Schedule 4.01(dd) is a complete and
accurate list of all leases of real property under which any Loan
Party or any of its Subsidiaries is the lessee, showing as of the
date hereof the street address, county or other relevant
jurisdiction, state, lessor, lessee, expiration date and annual
rental cost thereof. To the best knowledge of each Loan Party,
each such lease is the legal, valid and binding obligation of the
lessor thereof, enforceable in accordance with its terms.
<PAGE>
(ee) Set forth on Schedule 4.01(ee) is a complete and
accurate list of all Material Contracts of each Loan Party and
its Subsidiaries, showing as of the date hereof the parties,
subject matter and term thereof. Except as could not reasonably
be expected to have a Material Adverse Effect, each such Material
Contract has been duly authorized, executed and delivered by all
parties thereto, has not been amended or otherwise modified, is
in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms. There
exists no material default under any Material Contract by the
Borrower, the Company or any of their respective Subsidiaries
party thereto and, to the best knowledge of each Loan Party,
there exists no default under any Material Contract by any other
party thereto.
(ff) Set forth on Schedule 4.01(ff) is a complete and
accurate list of all Investments in excess of $1,000,000 held by
any Loan Party or any of its Subsidiaries, showing as of the date
hereof the amount, obligor or issuer and maturity, if any,
thereof.
(gg) Set forth on Schedule 4.01(gg) is a complete and
accurate list of all patents, trademarks, trade names, service
marks and copyrights, and all applications therefor and licenses
thereof, of each Loan Party or any of its Subsidiaries, showing
as of the date hereof the jurisdiction in which registered, the
registration number, the date of registration and the expiration
date. Each Loan Party and each of their respective Subsidiaries
owns or has rights to use all patents, trademarks, trade names,
service marks, copyrights and other intellectual property
necessary to conduct its business as now or heretofore conducted
by it or proposed to be conducted by it. Each Loan Party and
each of their respective Subsidiaries conducts its business and
affairs without infringement of or interference with any patent,
trademark, trade name, service mark, copyright or other
intellectual property of any other Person.
(hh) Each Acquisition Document to which the Borrower or any
of its Subsidiaries is a party has been duly executed and
delivered by the Borrower or such Subsidiary, as the case may be,
and, to the best knowledge of the Borrower, each Acquisition
Document has been duly executed and delivered by the parties
thereto other than the Borrower and its Subsidiaries and is in
full force and effect. The representations and warranties of the
Borrower and each of its Subsidiaries contained in each
Acquisition Document to which the Borrower or such Subsidiary, as
the case may be, is a party are true and correct in all material
respects on the date hereof and will be true and correct in all
material respects on the Closing Date and the Merger Date, as if
made on each of such dates, and the Administrative Agent and each
Lender Party shall be entitled to rely upon such representations
and warranties with the same force and effect as if they were
incorporated in this Agreement and made to the Administrative
Agent and each Lender Party directly as of the date hereof, the
Closing Date, and the Merger Date. To the best knowledge of the
Borrower and each of its Subsidiaries, the representations and
warranties of each other party, including, without limitation,
the Company, to each Acquisition Document contained therein are
<PAGE>
true and correct in all material respects on the date hereof and
will be true and correct on the Closing Date and the Merger Date
as if made on each of such dates. To the best knowledge of the
Borrower and each of its Subsidiaries, none of the Tender Offer
Documents contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
made therein in light of the circumstances under which they were
made not misleading.
(ii) Except for the fees to be paid to Bear, Stearns & Co.
Inc. as set forth in the Tender Offer Documents, no broker's or
finder's fees or commissions or any similar fees or commissions
will be payable by the Borrower or any Subsidiary with respect to
the incurrence and maintenance of the Obligations, any other
transaction contemplated by the Loan Documents or the Acquisition
Documents or any services rendered in connection with any such
transactions. The Borrower hereby covenants and agrees to
indemnify the Administrative Agent and each Lender Party against
and hold the Administrative Agent and each Lender Party harmless
from any claim, demand or liability for broker's or finder's fees
or similar fees or commissions, including, without limitation,
those of Bear, Stearns & Co. Inc., incurred or alleged to have
been incurred in connection with any of the transactions
contemplated hereby or by the Acquisition Documents.
ARTICLE V
COVENANTS OF THE BORROWER AND THE SUBSIDIARIES
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will:
(a) Compliance with Law. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance
to include, without limitation, compliance with ERISA.
(b) Payment of Taxes, Etc. Timely pay and discharge, and
cause each of its Subsidiaries to timely pay and discharge, (i)
all taxes, assessments and governmental charges or levies imposed
upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided,
however, that the Borrower and its Subsidiaries shall not be
required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against the
Borrower or any of its Subsidiaries; and, provided, further,
that, if such Lien, individually and in the aggregate with all
such other Liens, does not secure more than $250,000 of taxes,
assessments, charges and claims, such Lien may be paid within
three (3) Business Days after the Borrower or such Subsidiary, as
the case may be, obtains knowledge thereof.
<PAGE>
(c) Compliance with Environmental Laws. Comply, and cause
each of its Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and
Environmental Permits; obtain and renew and cause each of its
Subsidiaries to obtain and renew all Environmental Permits
reasonably necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove
and clean up all Hazardous Materials from any of its properties,
in accordance with the requirements of all Environmental Laws;
provided, however, that the Borrower and its Subsidiaries shall
not be required to undertake any such cleanup, Removal, Remedial
or Response action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and
adequate reserves as reasonably determined by the Administrative
Agent are being maintained with respect to such circumstances.
(d) Preparation of Environmental Reports. The Borrower
agrees that the Administrative Agent may, upon reasonable prior
notice, from time to time in its reasonable discretion, retain,
in consultation with the Borrower and at the Borrower's expense,
an independent professional consultant to prepare environmental
site assessment reports for the Borrower or any of its
Subsidiaries and/or to review any report (other than a report
properly subject to attorney-client privilege) relating to
Hazardous Materials prepared by or for the Borrower and, upon a
reasonable belief that the Borrower or any of its Subsidiaries
has breached any covenant or representation with respect to
environmental matters or that there has been a material violation
of Environmental Laws by the Borrower or one of its Subsidiaries,
the Administrative Agent may conduct its own investigation of
such matter at any facility or property currently owned, leased,
operated or used by the Borrower or one of its Subsidiaries and
the Borrower agrees to use its best efforts to obtain permission
for the Administrative Agent's professional consultant to conduct
its own investigation of any such matter at any facility or
property previously owned, leased, operated or used by the
Borrower or one of its Subsidiaries. The Borrower and its
Subsidiaries hereby grant to the Administrative Agent, its
employees, consultants and contractors, the right to enter into
or onto the facilities or properties currently owned, leased,
operated or used by the Borrower or its Subsidiaries upon
reasonable notice to the Borrower to perform such assessments on
such property as are reasonably necessary to conduct such a
review and/or investigation. Any such investigation of any such
facility or property shall be conducted, unless otherwise agreed
to by the Borrower and the Administrative Agent, during normal
business hours and, to the extent reasonably practicable, shall
be conducted so as not to interfere with the ongoing operations
at any facility or property or to cause any damage or loss to any
facility or property. The Borrower and the Administrative Agent
hereby acknowledge and agree that any report of any investigation
conducted at the request of the Administrative Agent will be
obtained and shall be reasonably used by the Administrative Agent
and Lender Parties for the purpose of internal credit decisions
<PAGE>
to monitor and police the Advances and/or protect the
Administrative Agent's and Lender Parties' security interests in
the Collateral and shall not be used by the Administrative Agent
or Lender Parties for any other purpose except as otherwise
expressly set forth in this Agreement. The Administrative Agent
and Lender Parties acknowledge and agree that any such report and
any information or data gleaned from or based upon any such
report or investigation conducted by the Administrative Agent, by
the Borrower or by both the Administrative Agent and Borrower
acting in cooperation hereunder, is and will be considered
Confidential Information for the purposes of this Agreement. The
Administrative Agent agrees to deliver a copy of any such report
to the Borrower with the understanding that the Borrower
acknowledges and agrees that (i) the Borrower will indemnify and
hold harmless the Administrative Agent and each Lender Party from
any costs, losses or liabilities relating to the Borrower's use
of or reliance on such report and (ii) neither the Administrative
Agent nor any Lender Party makes any representation or warranty
with respect to such report.
(e) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same
general areas in which the Borrower or such Subsidiary operates.
(f) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and
maintain, its existence, legal structure, legal name, rights
(charter and statutory), permits, licenses, approvals, privileges
and franchises; provided, however, that L Acquisition Corporation
may consummate the Merger.
(g) Visitation Rights. (i) At any reasonable time and
from time to time, upon reasonable notice, permit the
Administrative Agent or any agents or representatives thereof,
together with no more than three (3) designated representatives
of the Required Lenders, to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of the Borrower and its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any such
Subsidiaries with any of their officers or directors.
(ii) In the case of the Borrower, meet at least once
each calendar year (and more frequently if the Administrative
Agent so requests) with representatives of the Administrative
Agent and the Lender Parties to discuss the affairs, finances and
accounts of the Borrower and the Subsidiaries.
(iii) Permit the Administrative Agent, on behalf of
the Lender Parties, to conduct such commercial finance
examinations and/or Collateral audits of the Borrower and its
Subsidiaries during each calendar year as the Administrative
Agent may reasonably request. Such commercial finance
examinations and Collateral audits shall be conducted by Ernst &
Young LLP, in accordance with the Administrative Agent's
<PAGE>
instructions and protocol; provided, however, that, if a Default
has occurred, such commercial finance examinations and Collateral
audits shall be conducted, in accordance with the Administrative
Agent's instructions and protocol, by, at the Administrative
Agents's election, either Ernst & Young LLP or any other Person
reasonably selected by the Administrative Agent.
(h) Keeping of Books. Keep, and cause each of its Subsid-
iaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each such
Subsidiary in accordance with GAAP.
(i) Maintenance of Properties, Etc. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all
of its properties that are reasonably necessary in the conduct of
its business in good working order and condition, ordinary wear
and tear excepted.
(j) Compliance with Terms of Leaseholds. Make all payments
and otherwise perform all obligations in respect of all leases of
real property to which the Borrower or any of its Subsidiaries is
a party, keep such leases in full force and effect and not allow
such leases to lapse or be terminated or any rights to renew such
leases to be forfeited or canceled, notify the Administrative
Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure
any such default, and cause each of its Subsidiaries to do so
except, in any case, where the failure to do so, either
individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
(k) Performance of Material Contracts. Perform and
observe, and cause each of its Subsidiaries to perform and
observe, all of the terms and provisions of each Material
Contract to be performed or observed by it, maintain, and cause
each of its Subsidiaries to maintain, each such Material
Contract in full force and effect, and enforce, and cause each of
its Subsidiaries to enforce, each such Material Contract in
accordance with its terms.
(l) Transactions with Affiliates. Conduct, and cause each
of its Subsidiaries to conduct, all transactions otherwise
permitted under the Loan Documents with any of their Affiliates
on terms that are fair and reasonable and no less favorable to
the Borrower or such Subsidiary than it would obtain in a
comparable arms-length transaction with a Person not an
Affiliate.
(m) Agreement to Grant Additional Security. (i) Promptly,
and in any event within thirty (30) days after the acquisition of
assets of the type that would have constituted Collateral at the
date hereof and investments of the type that would have
constituted Collateral on the date hereof (other than assets with
a fair market value of less than $50,000), notify the
Administrative Agent of the acquisition of such assets or
investments and, to the extent not already Collateral in which
<PAGE>
the Administrative Agent has a perfected security interest
pursuant to the Collateral Documents, such assets and investments
will become additional Collateral hereunder to the extent the
Administrative Agent deems the pledge of such assets practicable
(the "Additional Collateral"), and the Borrower will, and will
cause each of its Subsidiaries to, take all necessary action,
including the filing of appropriate financing statements under
the provisions of the UCC, applicable foreign, domestic or local
laws, rules or regulations in each of the offices where such
filing is necessary or appropriate to grant Administrative Agent
a perfected Lien in such Collateral (or comparable interest under
foreign law in the case of foreign Collateral) pursuant to and to
the full extent required by the Collateral Documents and this
Agreement.
(ii) Promptly, and in any event no later than thirty
(30) days after a request with respect thereto, cause (a) the
Company and each of its Domestic Significant Subsidiaries and all
or such of its Foreign Significant Subsidiaries as the
Administrative Agent shall request, and (b) each of the
Borrower's Significant Domestic Subsidiaries and all or such of
the Borrower's Significant Foreign Subsidiaries as the Adminis-
trative Agent shall request, to become party to, or to execute
and deliver, a Guaranty guarantying to the Administrative Agent
and the Lenders the prompt payment, when and as due, of all
Obligations of the Loan Parties under the Loan Documents,
including all obligations under any Hedge Agreements or other
hedging agreements, each such Guaranty to be in form and
substance satisfactory to Administrative Agent; provided,
however, that no Guaranty shall be required if it violates the
terms of the Senior Note Indenture.
(iii) Promptly, and in any event no later than
thirty (30) days after a request with respect thereto, pledge to
the Administrative Agent, for the ratable benefit of the Lenders
and pursuant to the Security Agreement (or another pledge or
security agreement in form and substance satisfactory to the
Administrative Agent), all of the capital stock of each of the
Borrower's Domestic Subsidiaries (including the Company) and all
or such of the Borrower's Foreign Subsidiaries as the
Administrative Agent shall reasonably request after consultation
with the Borrower; provided, however, that no such pledge shall
be required if it violates the terms of the Senior Note
Indenture.
(iv) Promptly, and in any event no later than thirty
(30) days after a request with respect thereto, cause each
Guarantor created or established after the date hereof to grant
to the Administrative Agent, for the ratable benefit of the
Lenders, a first priority Lien on all property (tangible and
intangible) of such Guarantor upon terms similar to those set
forth in the Collateral Documents and otherwise satisfactory in
form and substance to Administrative Agent. The Borrower shall
cause each Guarantor, at its own expense, to become a party to a
Security Agreement and an Intellectual Property Security
Agreement and to execute, acknowledge and deliver, or cause the
execution, acknowledgment and delivery of, and thereafter
<PAGE>
register, file or record in any appropriate governmental office,
any document or instrument reasonably deemed by Administrative
Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens (including any additional or
substitute security agreements). The Borrower will cause each
such Guarantor to take all actions requested by Administrative
Agent (including, without limitation, the filing of UCC-1's) in
connection with the granting of such security interests. The
foregoing notwithstanding, until such time as the Senior Notes
shall have been repaid in full or defeased, the lien and security
interest of the Administrative Agent in the assets and properties
of the Company shall be subject to certain limitations imposed by
the Indenture.
(v) Promptly, and in any event not later than thirty
(30) days after a request with respect thereto, (A) deliver to
the Administrative Agent the original of all instruments,
documents and chattel paper, and all other Collateral of which
the Administrative Agent determines it should have physical
possession in order to perfect and protect its security interest
therein, duly pledged, endorsed or assigned to the Administrative
Agent without restriction; (B) obtain landlord waivers, in form
and substance satisfactory to the Administrative Agent, with
respect to any Inventory or other Collateral located at a
location that is not owned by the Borrower or a Subsidiary; (C)
deliver to the Administrative Agent warehouse receipts covering
any portion of the Inventory or other Collateral located in
warehouses and for which warehouse receipts are issued; (D) when
an Event of Default exists, transfer Inventory to locations
designated by the Administrative Agent; (E) if any Collateral is
at any time in the possession or control of any warehousemen,
bailee or any of the Borrower's agents or processors, notify the
Administrative Agent thereof and notify such person of the
Administrative Agent's security interest in such Collateral and
obtain a landlord waiver or bailee letter, in form and substance
satisfactory to the Administrative Agent, from such person and
instruct such person to hold all such Collateral for the
Administrative Agent's account subject to the Administrative
Agent's instructions; (F) if at any time any Inventory or other
Collateral is located on any real property of the Borrower which
is subject to a mortgage or other Lien, obtain a mortgagee
waiver, in form and substance satisfactory to the Administrative
Agent, from the holder of each mortgage or other Lien on such
real property; and (G) take all such other actions and obtain all
such other agreements as the Administrative Agent may reasonably
deem necessary or desirable in respect of any Collateral.
(vi) The security interests required to be granted
pursuant to this Section shall be granted pursuant to the
Collateral Documents or, in the Administrative Agent's
discretion, such other security documentation (which shall be
substantially similar to the Collateral Documents already
executed and delivered by the Borrower) as is satisfactory in
form and substance to Administrative Agent (the "Additional
Collateral Documents") and shall constitute valid and enforceable
perfected security interests prior to the rights of all third
Persons and subject to no other Liens except Liens permitted
under Section 5.02(a). The Additional Collateral Documents and
<PAGE>
other instruments related thereto shall be duly recorded or filed
in such manner and in such places and at such times as are
required by law to establish, perfect, preserve and protect the
Liens, in favor of Administrative Agent, for the benefit of the
Lender Parties, granted pursuant to the Additional Collateral
Documents and, all taxes, fees and other charges payable in
connection therewith shall be paid in full by the Borrower. At
the time of the execution and delivery of Additional Collateral
Documents, the Borrower shall cause to be delivered to
Administrative Agent such agreements, opinions of counsel, and
other related documents as may be reasonably requested by the
Administrative Agent or the Required Lenders to assure themselves
that this Section has been complied with.
(n) Interest Rate Protection. On or prior to December 31,
1996, the Borrower shall obtain and thereafter keep in effect one
or more interest rate Hedge Agreements with a Lender or Lenders
(the terms and other provisions of all such Hedge Agreements to
be subject to the prior written consent of the Administrative
Agent, such consent not to be unreasonably withheld) covering at
least $40,000,000 of the Advances outstanding on the Closing Date
for an aggregate period of not less than two (2) years commencing
on the Closing Date, and, in the event, if any, that the Borrower
shall be made a Working Capital Advance under the Note Repurchase
Sub-Facility, on or prior to the thirtieth (30th) day following
the making of such Advance, the Borrower shall obtain and
thereafter keep in effect one or more interest rate Hedge
Agreements with a Lender or Lenders (the terms and other
provisions of all such Hedge Agreements to be subject to the
prior written consent of the Administrative Agent, such consent
not to be unreasonably withheld) covering the entire principal
amount of all Working Capital Advances made under the Note
Repurchase Sub-Facility for an aggregate period of not less than
three (3) years commencing on the Closing Date.
(o) Performance of Acquisition Documents. Perform and
observe, or cause the relevant Subsidiary to perform and observe,
all of the terms and provisions of each Acquisition Document to
be performed or observed by it or such Subsidiary, maintain each
such Acquisition Document in full force and effect, enforce each
such Acquisition Document in accordance with its terms, take all
such action to such end as may be from time to time requested by
the Administrative Agent and, upon request of the Administrative
Agent, make to each other party to each such Acquisition Document
such demands and requests for action or for information and
reports as the Borrower or any Subsidiary is entitled to make
under such Acquisition Document.
(p) Consummation of Merger. Cause L Acquisition to
consummate the Merger as soon as practicable after the date
hereof, and in no event later than the one hundred and fiftieth
(150th) day after the date hereof, in accordance with the terms
and conditions of the Merger Agreement.
(q) Cash Concentration Accounts. The Borrower will, and
will cause each of its Subsidiaries to, maintain its main cash
concentration accounts with the Administrative Agent.
<PAGE>
(r) Post Merger Transactions. Promptly, but in no event
more than one hundred and five (105) days after the Merger, if
the Senior Note Indenture remains in effect, the Borrower shall
undertake the following transactions to which each Lender Party
hereby expressly consents:
(a) The Borrower shall transfer to the Company (by sale or
merger) all of the capital stock of its wholly-owned
subsidiary Lift-Tech International, Inc. ("Lift-Tech")
in exchange for the assumption by the Company of
$60,000,000 aggregate principal amount of the Term A
Notes and $30,000,000 aggregate principal amount of the
Term B Notes. Insofar as any amounts under the Working
Capital Facility have been advanced solely for purposes
of repurchasing Senior Notes, the Company shall also
assume such aggregate principal amount of Working
Capital Notes. The assumed Term A Notes, Term B Notes
and Working Capital Notes shall be the "Assumed Debt."
(b) Upon the assumption by the Company of the Assumed Debt,
the Company will exchange $35,000,000 aggregate
principal amount of the assumed Term A Notes for an
identical principal amount of Revolver Refinancing A
Notes ("New A Notes"). The New A Notes will be issued
pursuant to Section 1010(b)(1) of the Senior Note
Indenture, will constitute debt incurred to refinance
the Revolving Credit Facility (as defined in the Senior
Note Indenture) and will be entitled to the security
provided thereunder. The New A Notes will constitute a
revolving credit and the commitment under such
revolving credit will decrease over time
proportionately to the amortization of the Term A
Notes. The pricing, covenants, conditions, events of
default and other terms of the New A Notes will be
identical to the Term A Notes.
(c) Simultaneously with the assumption of the Assumed Debt,
the Borrower shall cause the Company to merge all of
its Domestic Subsidiaries, including Lift-Tech, with
and into it, and upon such merger shall grant to that
portion of the Assumed Debt which is not exchanged for
the New A Notes pursuant to clause (b) immediately
above, a perfected security interest, which shall be
shared equally and ratably with the Senior Notes, in
all of the personal property of the Company except for
the personal property securing the New A Notes (the
"Company Other Collateral").
(d) The order of application of any proceeds of Company
Other Collateral, securing that portion of the Assumed
Debt which is not exchanged for the New A Notes, shall
be, after giving effect to the requirement set forth in
the Senior Note Indenture that holders of the Senior
Notes share equally and ratably in such proceeds, as
follows: (i) the first $13,000,000 of such proceeds
shall be applied and shared ratably among the holders
of Assumed Debt constituting assumed Term B Notes; and
<PAGE>
(ii) all such proceeds in excess of $13,000,000 shall be applied
and shared ratably among the holders of all Assumed Debt (other
than the New A Notes) to repay outstanding Obligations in respect
of such Assumed Debt.
(e) The Borrower shall give the Lender Parties an
irrevocable and unconditional guarantee of all of the
Assumed Debt.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or
any Lender Party shall have any Commitment hereunder, the
Borrower will not, at any time, without the prior consent of the
Required Lenders:
(a) Liens, Etc.. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its
properties of any character (including, without limitation,
Accounts, Inventory and other Collateral) whether now owned or
hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under
the Uniform Commercial Code or any other statute of any
jurisdiction, a financing statement that names the Borrower or
any of its Subsidiaries as debtor, or sign or suffer to exist, or
permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to
file any such financing statement, or assign, or permit any of
its Subsidiaries to assign, any accounts or other right to
receive income, excluding, however, from the operation of the
foregoing restrictions the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and
described on Schedule 5.02(a)(iii);
(iv) purchase money Liens upon real property or equip-
ment acquired or held by the Borrower or any of its Subsidiaries
in the ordinary course of business to secure the purchase price
of such real property or equipment or to secure Debt incurred
solely for the purpose of financing the acquisition, construction
or improvement of any such real property or equipment to be
subject to such Liens, or Liens existing on any such real
property or equipment at the time of acquisition (other than any
such Liens created in contemplation of such acquisition that do
not secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount; provided, however, that no such Lien shall extend to or
cover any property other than the real property or equipment
being acquired, constructed or improved, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or
replaced; and, provided, further, that the aggregate principal
amount of the Debt secured by Liens permitted by this clause (iv)
shall not exceed $2,500,000 at any time outstanding; and,
<PAGE>
provided, further, that any such Debt shall not otherwise be
prohibited by the terms of the Loan Documents;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(B); provided, that no
such Lien shall extend to or cover any Collateral or any assets
other than the assets subject to such Capitalized Leases;
(vi) the replacement, extension or renewal of any Lien
permitted by clauses (iii) through (v) above upon or in the same
property theretofore subject thereto in connection with the
replacement, extension or renewal (without increase in the amount
or any change in any direct or contingent obligor) of the Debt
secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer
to exist, any Debt other than:
(i) in the case of the Borrower, Debt incurred
pursuant to the Loan
Documents;
(ii) in the case of any of the Subsidiaries of the
Borrower, Debt owed to the Borrower or to a wholly-owned
Subsidiary of the Borrower; provided, that, such Debt is
evidenced by a promissory note, such promissory note is pledged
to the Administrative Agent pursuant to the terms of the Security
Agreement and there are no restrictions whatsoever on the ability
of the Subsidiary to repay such Debt;
(iii) in the case of the Borrower and any of its
Subsidiaries:
(A) Debt secured by Liens permitted by Section
5.02(a)(iv) not to exceed in the aggregate $2,500,000 at any
time outstanding,
(B) Capitalized Leases not to exceed in the
aggregate $1,000,000 at any time outstanding,
(C) the Surviving Debt, and any Debt extending
the maturity of, or refunding or refinancing, in whole or in
part, the Surviving Debt; provided, that the terms of any
such extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in
connection therewith, are consented to in writing by the
Administrative Agent, with the approval of the Required
Lenders, and otherwise permitted by this Agreement and the
other Loan Documents; and, provided, further, that the
principal amount of such Surviving Debt shall not be
increased above the principal amount thereof outstanding on
the date hereof, and the direct and contingent obligors
therefor shall not be changed, as a result of or in connec-
tion with such extension, refunding or refinancing.
(D) endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordi-
nary course of business.
<PAGE>
(iv) in the case of the Borrower, unsecured Debt
incurred in the ordinary course of business for the deferred
purchase price of property or services, maturing within one year
from the date created, and aggregating, on a Consolidated basis,
not more than $3,000,000 at any one time outstanding.
(c) Lease Obligations. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume
or suffer to exist, any obligations as lessee (i) for the rental
or hire of real or personal property in connection with any sale
and leaseback transaction, or (ii) for the rental or hire of
other real or personal property of any kind under leases or
agreements to lease, including, without limitation, Capitalized
Leases having an original term of one year or more, that would
cause the direct and contingent liabilities of the Borrower and
its Subsidiaries, on a Consolidated basis, in respect of all such
obligations to exceed $2,500,000 payable in any period of 12
consecutive months.
(d) Fundamental Changes. Except as permitted pursuant to
Section 5.01(r), (i) merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its
Subsidiaries to do so, except that L Acquisition may consummate
the Merger in accordance with the terms of the Merger Agreement
and except that the Borrower may acquire that certain company
pursuant to that certain letter of intent, dated July 10, 1996, a
copy of which has been provided to the Administrative Agent;
(ii) liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution), convey, sell, assign, lease,
transfer or otherwise dispose of (or agree to do any of the
foregoing at any future time) all or substantially all of its
property, business or assets, or permit any of its Subsidiaries
to do any of the foregoing;
(iii) acquire or permit any Subsidiary to acquire
all or substantially all of the assets of any other Person
(including capital stock), except that L Acquisition may
consummate the Acquisition in accordance with the terms of the
Tender Offer Documents and Merger Agreement and except that the
Borrower may acquire that certain company pursuant to that
certain letter of intent, dated July 10, 1996, a copy of which
has been provided to the Administrative Agent.
(e) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to sell,
lease, transfer or otherwise dispose of, any assets or grant any
option or other right to purchase, lease or otherwise acquire any
assets, except:
(i) sales of Inventory in the ordinary course of
business;
(ii) sales of obsolete equipment in the ordinary course
of business;
<PAGE>
(iii) the sale of any asset by the Borrower or any of
its Subsidiaries (other than a sale of Inventory or a sale of
Receivables) so long as (A) the purchase price paid to the
Borrower or such Subsidiary for such asset shall be no less than
the fair market value of such asset at the time of such sale, (B)
the purchase price for such asset shall be paid to the Borrower
or such Subsidiary solely in cash and (C) the aggregate purchase
price paid to the Borrower and all of its Subsidiaries for such
asset and all other assets sold by the Borrower and its
Subsidiaries (i) since April 1, 1996 pursuant to this clause
(iii) shall not exceed $10,000,000 in the aggregate and (ii) in
any Fiscal Year pursuant to this clause (iii) shall not exceed
$4,000,000;
provided, further, that in the case of sales of assets pursuant
to this Section 5.02(e)(ii) or (iii) above, the Borrower shall,
on the date of receipt thereof, apply the entire Net Cash
Proceeds from such sale in accordance with Section 2.06(b)(ii).
(f) Investments in Other Persons. Make or hold, or permit
any of its Subsidiaries to make or hold, any Investment in any
Person other than:
(i) Investments by the Borrower and its Subsidiaries
in their Subsidiaries outstanding on the date hereof and de-
scribed on Schedule 5.02(f)(i), and additional investments in
wholly-owned Subsidiaries of the Borrower in an aggregate amount
invested from the date hereof not to exceed $7,000,000; provided,
however, that no more than an aggregate amount equal to
$3,000,000 shall be invested from the date hereof in Foreign
Subsidiaries; provided, further, that no more than an aggregate
amount equal to $3,000,000 shall be invested from the date hereof
in the Company and its Subsidiaries; and, provided, further, that
with respect to Investments in any newly acquired or created
wholly-owned Subsidiary, any such Subsidiary which is a
Significant Subsidiary shall become a Guarantor pursuant to the
terms of the Guaranty and an additional grantor pursuant to the
terms of the Security Agreement and Intellectual Property
Security Agreement;
(ii) Investments by the Borrower in that certain
company pursuant to, and with a purchase price not to exceed that
set forth in, the letter of intent, dated July 10, 1996, a copy
of which has been provided to the Administrative Agent;
(iii) Loans and advances to officers and other employees
in the ordinary course of the business of the Borrower and its
Subsidiaries in an aggregate principal amount not to exceed
$500,000 at any time outstanding;
(iv) Investments by the Borrower and its Subsidiaries
in Cash Equivalents;
(v) Investments by the Borrower and its Subsidiaries
in Hedge Agreements permitted under Section 5.01(n);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(ii);
<PAGE>
(vii) Investments existing on the date hereof and de-
scribed on Schedule 5.02(f)(vii) hereto;
(viii) Investments by L Acquisition Corporation in the
Company pursuant to the Acquisition as described in the Tender
Offer Documents.
(g) Dividends, Etc. Declare or pay any dividends, pur-
chase, redeem, retire, defease or otherwise acquire for value any
of its capital stock or any warrants, rights or options to
acquire such capital stock, now or hereafter outstanding, return
any capital to its stockholders as such, make any distribution of
assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any
capital stock or any warrants, rights or options to acquire such
capital stock, or permit any of its Subsidiaries to do any of the
foregoing or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any capital stock
of the Borrower or any warrants, rights or options to acquire
such capital stock or to issue or sell any such capital stock or
any warrants, rights or options to acquire such capital stock,
except:
(i) so long as no Default shall have occurred and be
continuing, or would result therefrom, the Borrower may declare
and pay regular quarterly dividends in cash on its common stock
in an aggregate amount not to exceed $4,500,000 in the Fiscal
Year ending March 31, 1997, $5,500,000 in the Fiscal Year ending
March 31, 1998, and $6,000,000 in the Fiscal Year ending March
31, 1999 and in each Fiscal Year thereafter,
(ii) the Borrower may declare and pay dividends and
distributions payable solely in common stock of the Borrower,
(iii) a Subsidiary may declare and pay dividends and
distributions to the Borrower,
(iv) for issuances of stock expressly permitted by
Section 5.02(r).
(h) Change in Nature of Business. Make, or permit any of
its Subsidiaries to make, any material change in the nature of
its business as carried on at the date hereof.
(i) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate or articles of
incorporation or bylaws.
(j) Accounting Changes. Make or permit, or permit any of
its Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as required by generally
accepted accounting principles (which required changes may be
made on a timely basis), or (ii) its Fiscal Year.
(k) Prepayments, Etc. of Debt. (i) Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled
maturity thereof in any manner, or make any payment in violation
<PAGE>
of any subordination terms of, any Debt, other than (A) the
prepayment of the Advances in accordance with the terms of this
Agreement, (B) regularly scheduled or required repayments or
redemptions of Surviving Debt and (C) repurchases of the Senior
Notes (1) pursuant to the rights of the holders of the Senior
Notes to require the Company to repurchase such Senior Notes
because of a "change in control" of the Company pursuant to the
change in control provision set forth in the Senior Note
Indenture, or (2) in the case of an "Asset Disposition" pursuant
to Section 1014 of the Senior Note Indenture, or (ii) amend,
modify or change in any manner any term or condition of any
Existing Debt or Surviving Debt, or (iii) permit any of its
Subsidiaries to do any of the foregoing other than to repay any
Debt payable to the Borrower.
(l) Amendment, Etc. of Acquisition Documents. Cancel or
terminate any Acquisition Document or consent to or accept any
cancellation or termination thereof, amend, modify or change in
any manner any term or condition of any Acquisition Document or
give any consent, waiver or approval thereunder, waive any
default under or any breach of any term or condition of any
Acquisition Document or take any other action in connection with
any Acquisition Document that would impair the value of the
interests or rights of the Borrower or L Acquisition thereunder
or that would impair the interests or rights of the
Administrative Agent or any Lender Party, or permit any of its
Subsidiaries to do any of the foregoing.
(m) Amendment, Etc. of Material Contracts. Cancel or
terminate the Merger Agreement or any Material Contract or
consent to or accept any cancellation or termination thereof,
amend or otherwise modify the Merger Agreement or any Material
Contract or give any consent, waiver or approval thereunder,
waive any default under or breach of the Merger Agreement or any
Material Contract or take any other action in connection with the
Merger Agreement or any Material Contract that would materially
impair the value of the interests or rights of the Borrower or
any of its Subsidiaries thereunder or that would materially
impair the interests or rights of the Administrative Agent or any
Lender Party, or permit any of its Subsidiaries to do any of the
foregoing.
(n) Negative Pledge. Enter into or suffer to exist, or
permit any of its Subsidiaries to enter into or suffer to exist,
any agreement prohibiting or conditioning the creation or assump-
tion of any Lien upon any of its properties or assets other than
(i) as provided in the Loan Documents or (ii) as presently
provided in the Senior Notes Indenture.
(o) Partnerships, New Subsidiaries. (i) Become a general
partner in any general or limited partnership or joint venture,
or permit any of its Subsidiaries to do so, or (ii) create any
new Subsidiary, unless such newly created Subsidiary shall become
a Guarantor pursuant to the terms of the Guaranty and an
additional grantor pursuant to the terms of the Security
Agreement and Intellectual Property Security Agreement and all
shares of the capital stock of such Subsidiary are pledged to the
Administrative Agent pursuant to the Pledge Agreement.
<PAGE>
(p) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity
options or futures contracts or derivatives or any similar
speculative transactions, except for Hedge Agreements expressly
permitted under Section 5.01(n).
(q) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause
the aggregate of all such Capital Expenditures made by the
Borrower and its Subsidiaries in any period set forth below to
exceed the amount set forth below for such period.
Period Amount
4/1/96 to 3/31/97 $11,000,000
4/1/97 to 3/31/98 $11,000,000
4/1/98 to 3/31/99 $12,500,000
4/1/99 to 3/31/00 and
Each Fiscal Year Thereafter $17,500,000
(r) Issuance of Stock. (i) The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly,
issue, sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock of the Borrower or any Subsidiary of
the Borrower, except (x) to the Borrower, (y) to qualify
directors if required by applicable law or (z) as set forth in
Schedule 5.02(r), and except for issuances of common stock for
cash by the Borrower to the extent expressly permitted under
Section 5.02(r)(ii) below.
(ii) The Borrower shall not issue any capital stock,
except for issuances of its common stock for cash (A) where after
giving effect to such issuance no Default will exist and (B)
where the Administrative Agent and Required Lenders have
consented to the terms and conditions of such offering. In the
event any common stock of the Borrower is issued pursuant to this
Section, the Borrower shall, on the date of its receipt thereof,
apply the Net Cash Proceeds received in connection with such
issuance in accordance with Section 2.06(b)(iii).
SECTION 5.03. Reporting Requirements. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment
hereunder, the Borrower will furnish to the Administrative Agent
and Lender Parties:
(a) Default Notice. As soon as possible and in any event
within two (2) Business Days after obtaining knowledge of the
occurrence of any Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect, a statement
of the chief financial officer of the Borrower setting forth
details of such Default or event, development or occurrence and
the action that the Borrower has taken and proposes to take with
respect thereto.
<PAGE>
(b) Monthly Financials. As soon as available and in any
event within forty (40) days after the end of each month which is
not a fiscal quarter end, a Consolidated balance sheet of the
Borrower and its Domestic and Canadian Subsidiaries, and
consolidating balance sheets of the Borrower and its Significant
Subsidiaries, as of the end of such month and a Consolidated
statement of income and a Consolidated statement of cash flows of
the Borrower and its Domestic and Canadian Subsidiaries, and
consolidating statements of income and consolidating statements
of cash flows of the Borrower and its Significant Subsidiaries,
for the period commencing at the end of the previous month and
ending with the end of such month and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower
and its Domestic and Canadian Subsidiaries, and consolidating
statements of income and consolidating statements of cash flows
of the Borrower and its Significant Subsidiaries, for the period
commencing at the end of the previous Fiscal Year and ending with
the end of such month, setting forth in each case in comparative
form the corresponding figures for the corresponding period of
the prior Fiscal Year, all in reasonable detail and duly
certified by the chief financial officer of the Borrower;
provided, however, that, notwithstanding the foregoing, the
monthly financial reports for the months ended October 31, 1996
and November 30, 1996 need not include the required information
with respect to the Company and its Domestic and Canadian
Subsidiaries.
(c) Quarterly Financials. As soon as available and in any
event within forty-five (45) days after the end of each fiscal
quarter of each Fiscal Year, a Consolidated balance sheet of the
Borrower and its Subsidiaries, and consolidating balance sheets
of the Borrower and its Significant Subsidiaries, as of the end
of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its
Subsidiaries, and consolidating statements of income and
consolidating statements of cash flows of the Borrower and its
Significant Subsidiaries, for the period commencing at the end of
the previous fiscal quarter and ending with the end of such
fiscal quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its
Subsidiaries, and consolidating statements of income and
consolidating statements of cash flows of the Borrower and its
Significant Subsidiaries, for the period commencing at the end of
the previous Fiscal Year and ending with the end of such fiscal
quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding period of the
preceding Fiscal Year and the corresponding figures from the
budgets for such period and for the Fiscal Year which includes
such period, all in reasonable detail and duly certified by the
chief financial officer of the Borrower as having been prepared
in accordance with GAAP (subject to normal year-end audit
adjustments), together with (i) a certificate of said officer
stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto and (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used
<PAGE>
by the Borrower in determining compliance with the financial
covenants contained in Sections 5.04(a) through (d), provided,
that in the event of any change in GAAP used in the preparation
of such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.04,
a statement of reconciliation conforming such financial
statements to GAAP.
(d) Annual Financials. As soon as available and in any
event within one hundred and five (105) days after the end of
each Fiscal Year, a copy of the annual audit report for such year
for the Borrower and its Subsidiaries, including therein a
Consolidated balance sheet of the Borrower and its Subsidiaries,
and consolidating balance sheets of the Borrower and its
Significant Subsidiaries, as of the end of such Fiscal Year and a
Consolidated statement of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries, and
consolidating statements of income and consolidating statements
of cash flows of the Borrower and its Significant Subsidiaries,
for such Fiscal Year, in each case setting forth in comparative
form the corresponding figures for the prior Fiscal Year and the
corresponding figures from the budget for such Fiscal Year and in
each case accompanied (in the case of such Consolidated financial
statements) by an opinion acceptable to the Administrative Agent,
with the consent of the Required Lenders, of Ernst & Young LLP or
other independent certified public accountants of recognized
national standing acceptable to the Administrative Agent, with
the consent of the Required Lenders, together with (i) a letter
of such accounting firm to the Administrative Agent and Lender
Parties stating that in the course of the regular audit of the
business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if,
in the opinion of such accounting firm, a Default has occurred
and is continuing, a statement as to the nature thereof, (ii) a
schedule in form satisfactory to the Administrative Agent of the
computations used by such accountants in determining, as of the
end of such Fiscal Year, compliance with the covenants contained
in Sections 5.04(a) through (d), provided, that in the event of
any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP and
(iii) a certificate of the chief financial officer of the
Borrower stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto.
(e) Annual Forecasts. As soon as available and in any
event no later than thirty (30) days after the end of each Fiscal
Year, forecasts prepared by management of the Borrower, in form
reasonably satisfactory to the Administrative Agent, of balance
sheets, income statements and cash flow statements on a quarterly
basis for the Fiscal Year following such Fiscal Year then ended.
<PAGE>
(f) ERISA Events and ERISA Reports. (i) Promptly and in
any event within twenty (20) days after any Loan Party or any
ERISA Affiliate knows or has reason to know that any ERISA Event
has occurred, a statement of the chief financial officer of the
Borrower describing such ERISA Event and the action, if any, that
such Loan Party or such ERISA Affiliate has taken and proposes to
take with respect thereto and (ii) on the date any records,
documents or other information must be furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA, a copy of
such records, documents and information.
(g) Plan Terminations. Promptly and in any event within
five (5) Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate, copies of each notice from the PBGC stating
its intention to terminate any Plan or to have a trustee
appointed to administer any Plan or correspondence from the PBGC
indicating it is considering termination of any Plan.
(h) Actuarial Reports. Promptly upon receipt thereof by
any Loan Party or any ERISA Affiliate, a copy of the annual
actuarial valuation report for each Plan the funded current
liability percentage (as defined in Section 302(d)(8)(B) of
ERISA) of which is less than 75% or the unfunded current
liability (as defined in Section 302(d)(8)(A) of ERISA) of which
exceeds $2,000,000.
(i) Plan Annual Reports. Upon the request, from time to
time, of the Administrative Agent, promptly and in any event
within thirty (30) days after the filing thereof with the
Internal Revenue Service, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) with respect
to each Plan.
(j) Annual Plan Summaries. As soon as available and in any
event within one hundred and five (105) days after the end of
each Fiscal Year, an annual summary of actuarial valuation and
other information with respect to each Plan in form, substance
and detail reasonably satisfactory to the Administrative Agent.
(k) Multiemployer Plan Notices. Promptly and in any event
within five (5) Business Days after receipt thereof by any Loan
Party or any ERISA Affiliate from the sponsor of a Multiemployer
Plan, copies of each notice concerning, or other correspondence
with respect to, (i) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (iii) the amount of liability incurred, or
that may be incurred, by such Loan Party or any ERISA Affiliate
in connection with any event described in clause (i) or (ii).
(l) Litigation. Promptly after the commencement thereof,
notice of all material actions, suits, investigations, litigation
and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, Federal,
state, local or foreign, affecting any Loan Party or any of its
Subsidiaries and, promptly after the occurrence thereof, notice
of any material adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the
Disclosed Litigation from that described on Schedule 3.01(e).
<PAGE>
(m) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial
statements and reports that any Loan Party or any of its
Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files
with the Securities and Exchange Commission or any other
governmental authority, or with any national securities exchange.
(n) Creditor Reports. Promptly after the furnishing
thereof, copies of any statement or report furnished to any other
holder of the securities of any Loan Party or of any of its
Subsidiaries pursuant to the terms of any indenture, loan or
credit agreement or similar agreement or instrument and not
otherwise required to be furnished to the Lender Parties pursuant
to any other clause of this Section 5.03.
(o) Agreement Notices. Promptly upon receipt thereof,
copies of all notices, requests and other documents received by
any Loan Party or any of its Subsidiaries under or pursuant to
any Acquisition Document or Material Contract or indenture, loan
or credit agreement or similar agreement or instrument regarding
or related to any breach or default by any party thereto or any
event that could materially impair the value of the interests or
the rights of any Loan Party or any of its Subsidiaries or
otherwise have a Material Adverse Effect and copies of any
amendment, modification or waiver of any provision of any
Acquisition Agreement or Material Contract or indenture, loan or
credit agreement or similar agreement or indenture and, from time
to time upon request by the Administrative Agent, such
information and reports regarding the foregoing as the
Administrative Agent may reasonably request.
(p) Revenue Agent Reports. Within ten (10) days after
receipt, copies of all Revenue Agent Reports (Internal Revenue
Service Form 886), or other written proposals of the Internal
Revenue Service, that propose, determine or otherwise set forth
any adjustments to the Federal income tax liability of the
affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which the Borrower is a member
aggregating $250,000 or more.
(q) Environmental Conditions. Promptly after the assertion
or occurrence thereof, notice of any Environmental Action against
or of any noncompliance by any Loan Party or any of its
Subsidiaries with any Environmental Law or Environmental Permit
that could reasonably be expected to have a Material Adverse
Effect.
(r) Real Property. Upon the request, from time to time, of
the Administrative Agent, promptly and in any event within thirty
(30) days after any such request, a report supplementing
Schedules 4.01(cc) and 4.01(dd) hereto, including an
identification of all real and leased property disposed of by the
Borrower or any of its Subsidiaries during such Fiscal Year, a
list and description (including the street address, county or
other relevant jurisdiction, state, record owner and, in the case
<PAGE>
of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all real property acquired or leased
during such Fiscal Year and a description of such other changes
in the information included in such Schedules as may be necessary
for such Schedules to remain accurate and complete in all
respects.
(s) Insurance. As soon as available and in any event
within thirty (30) days after the end of each Fiscal Year, a
report summarizing the insurance coverage (specifying type,
amount and carrier) in effect for each Loan Party and its
Subsidiaries and containing such additional information as the
Administrative Agent may reasonably request.
(t) Borrowing Base Certificate. As soon as available and
in any event within fifteen (15) days after the end of each
month, a Borrowing Base Certificate, as at the end of the
previous month, certified by the chief financial officer of the
Borrower.
(u) Management Letters. As soon as available and in any
event within five (5) Business Days after the receipt thereof,
copies of any "management letter" or similar letter received by
the Borrower or its Board of Directors (or any Committee thereof)
from its independent public accountants.
(v) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party or any of
its Subsidiaries or the Collateral as the Administrative Agent or
any Lender Party (through the Administrative Agent) may from time
to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or
any Lender Party shall have any Commitment hereunder, the
Borrower will:
(a) Funded Debt to EBITDA Ratio. Maintain as of the end of
each fiscal quarter of the Borrower a ratio of (i) Consolidated
Funded Debt to (ii) EBITDA for the most recently completed four
fiscal quarters of the Borrower of not more than the ratio set
forth below:
Four Fiscal Quarters ending on: Ratio
December 31, 1996 4.60
March 31, 1997 4.0
June 30, 1997 4.0
September 30, 1997 4.0
December 31, 1997 4.0
March 31, 1998 3.25
June 30, 1998 3.25
September 30, 1998 3.25
December 31, 1998 3.25
March 31, 1999 2.75
June 30, 1999 2.75
<PAGE>
September 30, 1999 2.75
December 31, 1999 2.75
March 31, 2000 and each
fiscal quarter end thereafter 2.25
(b) Interest Coverage Ratio. Maintain as of the end of
each fiscal quarter of the Borrower a ratio of (i) Consolidated
EBITDA for the most recently completed four fiscal quarters of
the Borrower to (ii) Interest Expense of the Borrower and its
Subsidiaries for such period of not less than the ratio set forth
below for such period:
Four Fiscal Quarters ending on: Ratio
December 31, 1996 2.50
March 31, 1997 2.50
June 30, 1997 2.50
September 30, 1997 2.50
December 31, 1997 2.50
March 31, 1998 2.50
June 30, 1998 2.50
September 30, 1998 2.50
December 31, 1998 2.50
March 31, 1999 2.75
June 30, 1999 2.75
September 30, 1999 2.75
December 31, 1999 2.75
March 31, 2000 and each
fiscal quarter end thereafter 3.0
(c) Fixed Charge Coverage Ratio. Maintain as of the end of
each fiscal quarter of the Borrower a ratio of (i) Consolidated
EBITDA for the most recently completed four fiscal quarters of
the Borrower, less Maintenance Capital Expenditures made during
such period, less the aggregate amount of federal, state, local
and foreign taxes paid by the Borrower and its Subsidiaries
during such period, less cash dividends paid by Borrower to the
holders of its common stock during such period, to the (ii) sum
of (w) cash interest payable by the Borrower and its Subsidiaries
on all Debt during such period, plus (x) cash rentals payable
under Capitalized Leases during such period, plus (y) principal
amounts of all Funded Debt payable by the Borrower and its
Subsidiaries during such period, less (z) principal amounts
payable in respect of the Senior Notes during such period, of not
less than the ratio set forth below for such period:
Four Fiscal Quarters ending on: Ratio
December 31, 1996 1.10
March 31, 1997 1.10
June 30, 1997 1.10
September 30, 1997 1.10
December 31, 1997 1.10
March 31, 1998 1.15
June 30, 1998 1.15
September 30, 1998 1.15
December 31, 1998 1.15
<PAGE>
March 31, 1999 1.15
June 30, 1999 1.15
September 30, 1999 1.15
December 31, 1999 1.15
March 31, 2000 1.15
June 30, 2000 1.15
September 30, 2000 1.15
December 31, 2000 1.15
March 31, 2001 and each
fiscal quarter end thereafter 1.20
(d) Minimum Net Worth. Maintain, as of the last day of
each fiscal quarter, an excess of Consolidated total assets over
Consolidated total liabilities of the Borrower and its
Subsidiaries of not less than (i) 85% of the excess of
Consolidated total assets over Consolidated total liabilities of
the Borrower and its Subsidiaries at September 30, 1996 plus (ii)
75% of Consolidated positive net income (and excluding 100% of
Consolidated net losses) of the Borrower and its Subsidiaries
since September 30, 1996 to and including each date of
determination computed on a cumulative basis for said entire
period.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following
("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the
Borrower shall fail to pay any interest on any Advance, or any
Loan Party shall fail to make any other payment under any Loan
Document, in each case under this clause (ii) within two (2)
Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan
Document shall prove to have been incorrect in any material
respect when made or confirmed; or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.14, 5.01(d), (e),
(f), (g), (l), (m), (n), (o) or (p), 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain
unremedied for thirty (30) days after the earlier of the date on
which (i) a Responsible Officer of any Loan Party becomes aware
of such failure or (ii) written notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender
Party; or
<PAGE>
(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal
or notional amount of at least $1,000,000 either individually or
in the aggregate (but excluding Debt outstanding hereunder) of
such Loan Party or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); or any
other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt, in each case
if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause,
such Debt to mature; or any such Debt shall be declared to be due
and payable or required to be prepaid or redeemed (other than by
(i) a regularly scheduled required prepayment or redemption or
(ii) in the case of the Senior Notes only, a required redemption
arising based solely upon the change in control brought about by
the Tender Offer or Merger), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall
admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against any Loan Party
or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted
against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of thirty (30) days
or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or
the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property)
shall occur, or any Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set
forth above in this subsection (f); or
(g) any judgment or order for the payment of money in
excess of $1,000,000 (other than such a judgment or order which
is fully covered by insurance for which the appropriate insurer
has acknowledged responsibility in writing) shall be rendered
against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be a period of
seven (7) consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
<PAGE>
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that is reason-
ably likely to have a Material Adverse Effect; or
(i) any material provision of any Loan Document after
delivery thereof shall for any reason cease to be valid and
binding on or enforceable against any Loan Party which is party
to it, or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof shall
for any reason cease to or otherwise not create a valid and
perfected first and only priority lien on and security interest
in the Collateral purported to be covered thereby; or
(k) (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3, of the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended), directly
or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 15%
or more of the combined voting power of all Voting Stock of the
Borrower; (ii) the individuals who at the date hereof were
Directors of the Borrower (together with any other Director whose
election to the Board of Directors of the Borrower (or whose
nomination by the Board of Directors for election by the
stockholders of the Borrower) was approved by a vote of at least
a majority of the Directors then in office who either were
directors at the date hereof or whose election was previously so
approved) shall cease for any reason to constitute a majority of
the Board of Directors of the Borrower; or (iii) any Person or
two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the
Borrower; or
(1) any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of the
last such ERISA Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which an
ERISA Event shall have occurred and then exist (or the liability
of the Loan Parties and the ERISA Affiliates related to such
ERISA Events) exceeds $2,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has
incurred Withdrawal Liability to such Multiemployer Plan in an
amount that, when aggregated with all other amounts required to
be paid to Multiemployer Plans by the Loan Parties and the ERISA
Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $500,000 or requires payments
exceeding $200,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated,
<PAGE>
within the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions
of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$200,000; or
(o) there shall occur in the reasonable judgment of the
Required Lenders any Material Adverse Change; or
(p) any Borrowing Base Deficiency shall occur which is not
eliminated by the Borrower's prepayment within two (2) Business
Days of then outstanding Swing Line Advances and Working Capital
Advances in an amount sufficient to eliminate such Borrowing Base
Deficiency;
then, and in any such event, the Administrative Agent (i) shall
at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the Commitments of each
appropriate Lender (other than the Commitment in respect of
Letter of Credit Advances by the Issuing Bank or a Working
Capital Lender pursuant to Section 2.03(c) and Swing Line
Advances by a Working Capital Lender pursuant to Section 2.02(b))
and of the Issuing Bank to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the
Notes, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such
other amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower
and (B) by notice to each party required under the terms of any
agreement in support of which a Standby Letter of Credit is
issued, request that all Obligations under such agreement be
declared to be due and payable; provided, however, that in the
event of an actual or deemed entry of an order for relief with
respect to any Loan Party or any of its Subsidiaries under the
Federal Bankruptcy Code, (x) the obligation of each Lender to
make Advances (other than Letter of Credit Advances by the
Issuing Bank or a Working Capital Lender pursuant to Section
2.03(c) and Swing Line Advances by a Working Capital Lender
pursuant to Section 2.02(b)) and of the Issuing Bank to issue
Letters of Credit shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit
upon Default. If any Event of Default shall have occurred and be
continuing, the Administrative Agent may, or shall at the request
of the Required Lenders, irrespective of whether it is taking any
<PAGE>
of the actions described in Section 6.01 or otherwise, make
demand upon the Borrower to, and forthwith upon such demand the
Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's
office designated in such demand, for deposit in the L/C Cash
Collateral Account, an amount equal to the aggregate Available
Amount of all Letters of Credit then outstanding. If at any time
the Administrative Agent determines that any funds held in the
L/C Cash Collateral Account are subject to any right or claim of
any Person other than the Administrative Agent and the Lender
Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent, pay to
the Administrative Agent, as additional funds to be deposited and
held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total
amount of funds, if any, then held in the L/C Cash Collateral
Account that the Administrative Agent determines to be free and
clear of any such right and claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender Party
(in its capacities as a Lender, the Issuing Bank, the Swing Line
Bank and any Hedge Bank) hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the
Loan Documents (including, without limitation, enforcement or
collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall
be binding upon all Lender Parties and all holders of Notes;
provided, however, that the Administrative Agent shall not be
required to take any action that exposes the Administrative Agent
to personal liability or that is contrary to this Agreement, any
other Loan Document or applicable law. The Administrative Agent
agrees to give to each Lender Party prompt notice of each notice
given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Adminis-
trative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of
any Note as the holder thereof until the Administrative Agent
<PAGE>
receives and accepts an Assignment and Acceptance entered into by
the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (b)
may consult with legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to
be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender Party and shall not be responsible
to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in
connection with the Loan Documents; (d) shall not have any duty
to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on
the part of any Loan Party or to inspect the property (including
the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of,
or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with,
any Loan Document or any other instrument or document furnished
pursuant thereto; and (f) shall incur no liability under or in
respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
telegram, telecopy or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Fleet and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it,
Fleet shall have the same rights and powers under the Loan
Documents as any other Lender Party and may exercise the same as
though it were not the Administrative Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include Fleet in its individual capacity. Fleet and
its affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person who
may do business with or own securities of any Loan Party or any
such Subsidiary, all as if Fleet were not the Administrative
Agent and without any duty to account therefor to the Lender
Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender
Party acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender Party
and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement.
<PAGE>
SECTION 7.05. Indemnification. (a) Each Lender Party
severally agrees to indemnify the Administrative Agent (to the
extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below)
of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative
Agent in any way relating to or arising out of any of the Loan
Documents or any action taken or omitted by the Administrative
Agent under any of the Loan Documents; provided, however, that no
Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party agrees to
reimburse the Administrative Agent promptly upon demand for its
ratable share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower
under Section 8.04, to the extent that the Administrative Agent
is not promptly reimbursed for such costs and expenses by the
Borrower.
(b) Each Lender Party severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted
against the Issuing Bank in any way relating to or arising out of
any of the Loan Documents or any action taken or omitted by the
Issuing Bank under any of the Loan Documents; provided, however,
that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
the Issuing Bank's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party agrees to
reimburse the Issuing Bank promptly upon demand for its ratable
share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by the Borrower under
Section 8.04, to the extent that the Issuing Bank is not promptly
reimbursed for such costs and expenses by the Borrower.
(c) For purposes of Sections 7.05(a) and 7.05(b), the
Lender Parties' respective ratable shares of any amount shall be
determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (b) their
respective Pro Rata Shares of the aggregate Available Amount of
all Letters of Credit outstanding at such time, (c) the aggregate
unused portions of their respective Term A Commitments and Term B
Commitments at such time and (d) their respective Unused Working
Capital Commitments at such time; provided, that the aggregate
principal amount of Swing Line Advances owing to the Swing Line
Bank and Letter of Credit Advances owing to the Issuing Bank
shall be considered to be owed to the Working Capital Lenders
<PAGE>
ratably in accordance with their respective Working Capital
Commitments. In the event that any Defaulted Advance shall be
owing by any Defaulting Lender at any time, such Lender Party's
Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be
considered to be unused for purposes of this Section 7.05 to the
extent of the amount of such Defaulted Advance. The failure of
any Lender Party to reimburse the Administrative Agent or the
Issuing Bank, as the case may be, promptly upon demand for its
ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank, as the
case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse the
Administrative Agent or the Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to
reimburse the Administrative Agent or the Issuing Bank, as the
case may be, for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other
agreements of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 7.05
shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Loan
Documents.
SECTION 7.06. Successor Administrative Agents. The
Administrative Agent may resign as to any or all of the
Facilities at any time by giving written notice thereof to the
Lender Parties and the Borrower and may be removed as to all of
the Facilities at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor
Administrative Agent as to such of the Facilities as to which the
Administrative Agent has resigned or been removed. If no
successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment,
within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation or the Required Lenders' removal
of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lender Parties,
appoint a successor Administrative Agent, which shall be a Lender
which is a commercial bank organized or licensed under the laws
of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent as to all of the Facilities
and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the
Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to
and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from all of
its duties and obligations under this Agreement and the other
Loan Documents. Upon the acceptance of any appointment as
<PAGE>
Administrative Agent hereunder by a successor Administrative
Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements,
or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Required Lenders may
request, in order to continue the perfection of the Liens granted
or purported to be granted by the Collateral Documents, such
successor Administrative Agent shall succeed to and become vested
with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other
than with respect to funds transfers and other similar aspects of
the administration of Borrowings under such Facilities, issuances
of Letters of Credit (notwithstanding any resignation as
Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such
Facilities, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. After any
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent as to all of the Facilities, the
provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent as to any Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Notes or any other Loan
Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in
writing and signed (or, in the case of the Collateral Documents,
consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that (a)
no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender Party that
is, at such time, a Defaulting Lender), do any of the following
at any time: (i) waive any of the conditions specified in Section
3.01 or, in the case of the Initial Extension of Credit, Section
3.03; (ii) change the number of Lenders or the percentage of (x)
the Commitments, (y) the aggregate unpaid principal amount of the
Advances or (z) the aggregate Available Amount of outstanding
Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder; (iii)
release any material portion of the Collateral in any transaction
or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on any material
portion of the Collateral in any transaction or series of related
transactions to secure any liabilities or obligations other than
Obligations owing to the Secured Parties under the Loan
Documents; (iv) release any of the Guarantors from their
Guaranty, other than (A) to the extent required by the terms of
the Senior Note Indenture, the release of the Guaranty of L
Acquisition at the time of the Merger and (B) to the extent
<PAGE>
required by the Senior Note Indenture, the release of the
Guaranty of Lift-Tech at the time of the transactions
contemplated by Section 5.01(r); (v) amend this Section 8.01; or
(vi) limit the liability of any Loan Party under any of the Loan
Documents and (b) no amendment, waiver or consent shall, unless
in writing and signed by the Required Lenders and each Lender
that has a Commitment under the Term A Facility, Term B Facility
or Working Capital Facility if affected by such amendment, waiver
or consent, (i) increase the Commitments of such Lender or
subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest on, the Notes held by such Lender
or any fees or other amounts payable hereunder to such Lender,
(iii) postpone any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender or (iv) waive or change
the order or method of application of any prepayment set forth in
Section 2.06 in any manner that materially affects such Lender;
provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by the Swing Line Bank or the
Issuing Bank, as the case may be, in addition to the Lenders
required above to take such action, affect the rights or obliga-
tions of the Swing Line Bank or the Issuing Bank, as the case may
be, under this Agreement or any other Loan Document; and
provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action,
affect the rights or duties of the Administrative Agent under
this Agreement or any other Loan Document.
SECTION 8.02. Notices Etc. All notices and other
communications provided for hereunder shall be in writing
(including telegraphic, telecopy or telex communication) and
mailed, telegraphed, telecopied, telexed or delivered,
(i) if to the Borrower:
Columbus McKinnon Corporation
140 John James Audubon Parkway
Amherst, New York 14228
Attention: Robert L. Montgomery, Jr.
Executive Vice President
Telephone No.: (716) 689-5405
Facsimile No.: (716) 689-5598
with a copy to:
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center
Buffalo, New York 14203
Attention: Frederick G. Attea, Esq.
Telephone No.: (716) 847-7010
Facsimile No.: (716) 852-6100
<PAGE>
(ii) if to the Administrative Agent:
Fleet Bank
10 Fountain Plaza
Buffalo, New York 14202
Attention: Corporate Banking Group
Telephone No.: (716) 847-7332
Facsimile No.: (716) 847-4491
with a copy to:
Winston & Strawn
200 Park Avenue
New York, New York 10166
Attention: Robert W. Ericson, Esq.
Telephone No.: (212) 294-6741
Facsimile No.: (212) 294-4700
(iii) if to any Initial Lender or the Initial Issuing
Bank, at its Domestic Lending Office specified opposite its name
on Schedule I attached hereto.
(iv) if to any other Lender Party, at its Domestic
Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party;
or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice
to the Borrower and the Administrative Agent. All such notices
and communications shall, when mailed by certified mail, return
receipt requested, telegraphed, telecopied or telexed, be
effective three (3) days after mailing, upon delivery to the
telegraph company, upon transmission by telecopier or upon
confirmation by telex answerback, respectively, except that
notices and communications to the Administrative Agent pursuant
to Article II, III or VII shall not be effective until received
by the Administrative Agent. Delivery by telecopier of an
executed counterpart of this Agreement, the Notes or any other
Loan Document or of any Exhibit hereto or thereto or of any
amendment or waiver of any provision thereof shall be as
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part
of any Lender Party or the Administrative Agent to exercise, and
no delay in exercising, any right hereunder or under any Note or
under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law or in equity.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees
to pay on demand (i) all reasonable costs and expenses of the
Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment
<PAGE>
of the Loan Documents (including, without limitation, (A) all due
diligence, collateral review, syndication (including printing,
distribution and bank meetings), transportation, computer,
duplication, appraisal, audit, insurance, consultant, search,
filing and recording fees and expenses, and (B) the reasonable
fees and expenses of counsel for the Administrative Agent with
respect thereto, with respect to advising the Administrative
Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests under the Loan
Documents, with respect to negotiations with any Loan Party or
with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that
may give rise to a Default and with respect to presenting claims
in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors'
rights generally and any proceeding ancillary thereto) and (ii)
all costs and expenses of the Administrative Agent and the Lender
Parties in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation or any bankruptcy,
insolvency or other similar proceeding affecting creditors'
rights generally or otherwise (including, without limitation, the
fees and expenses of counsel for the Administrative Agent and
each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their
respective Affiliates and their respective officers, directors,
employees, agents and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out
of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with
(i) the Acquisition or any related transaction of Borrower or any
of its Subsidiaries or other Affiliates and any of the other
transactions contemplated by the Loan Documents, (ii) any
acquisition or proposed acquisition or similar business
combination or proposed business combination by Borrower or any
of its Subsidiaries or other Affiliates of all or any portion of
the shares of capital stock or substantially all of the property
and assets of any other Person, (iii) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of
Credit by the Borrower or any of its Subsidiaries or other
Affiliates and any of the other transactions contemplated by the
Loan Documents, or (iv) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of
its Subsidiaries or any Environmental Action relating in any way
to any Loan Party or any of its Subsidiaries, in each case
whether or not such investigation, litigation or proceeding is
brought by any Loan Party, its directors, officers, employees,
stockholders or creditors or an Indemnified Party or any
Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
<PAGE>
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. The Borrower also agrees not
to assert any claim against the Administrative Agent, any Lender
Party or any of their respective Affiliates, or any of their
respective officers, directors, employees, attorneys and agents,
on any theory of liability, for special, indirect, consequential
or punitive damages arising out of or otherwise relating to the
Acquisition, the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan
Documents or any of the transactions contemplated thereby, other
than claims for direct, as opposed to consequential, damages
which shall have been determined in a final nonappealable
judgment by a court of competent jurisdiction to have resulted
from such Person's gross negligence or willful misconduct.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the
account of a Lender Party other than on the last day of the
Interest Period for such Advance, as a result of a payment or
Conversion pursuant to Section 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section
6.01 or for any other reason, or by an Eligible Assignee to a
Lender Party other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations
under this Agreement pursuant to Section 8.07, the Borrower
shall, upon demand by such Lender Party (with a copy of such
demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender Party any amounts required
to compensate such Lender Party for any additional losses, costs
or expenses that it may reasonably incur as a result of such
payment, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of
the liquidation or re-employment of deposits or other funds
required by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party
by the Administrative Agent, in its sole discretion.
(e) Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan
Document, the agreements and obligations of the Borrower
contained in Sections 2.10 and 2.12 and this Section 8.04 shall
survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan
Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence
and during the continuance of any Default and (b) the making of
the request or the granting of the consent specified by Section
6.01 to authorize the Administrative Agent to declare the Notes
due and payable pursuant to the provisions of Section 6.01, each
Lender Party and each of its respective Affiliates is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and otherwise apply any and
all deposits (general or special, time or demand, provisional or
<PAGE>
final) at any time held and other indebtedness at any time owing
by such Lender Party or such Affiliate to or for the credit or
the account of the Borrower or any of its Subsidiaries against
any and all of the Obligations of the Borrower now or hereafter
existing under this Agreement and the Note or Notes (if any) held
by such Lender Party, irrespective of whether such Lender Party
shall have made any demand under this Agreement or such Note or
Notes and although such obligations may be unmatured. Each
Lender Party agrees promptly to notify the Borrower and
Administrative Agent after any such set-off and application;
provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights
of each Lender Party and its respective Affiliates under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender
Party and its respective Affiliates may have at law, in equity or
otherwise.
SECTION 8.06. Binding Effect This Agreement shall become
effective when it shall have been executed by the Borrower and
the Administrative Agent and when the Administrative Agent shall
have been notified by each Initial Lender and the Initial Issuing
Bank that each such Initial Lender and the Initial Issuing Bank
has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each
Lender Party and their respective successors and assigns, except
that the Borrower shall not have the right to assign any of its
rights hereunder or any interest herein without the prior written
consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such
assignment shall be of a uniform, and not a varying, percentage
of all rights and obligations under and in respect of one or more
Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this
Agreement, the amount of the Commitment of the assigning Lender
being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000, (iii) each
such assignment shall be to an Eligible Assignee, (iv) no such
assignments shall be permitted without the prior consent of the
Administrative Agent (which may be withheld for any reason) until
the earlier of (A) the Administrative Agent's having notified the
Lender Parties that syndication of the Commitments hereunder has
been completed and (B) ninety (90) days after the Closing Date,
(v) no such assignment shall be permitted if, immediately after
giving effect thereto, the Borrower would be required to make
payments to or on behalf of the assignee Lender Party pursuant to
Section 2.10(a) or (b) and the assignor Lender Party was not, at
the time of such assignment, entitled to receive any payment
pursuant to Section 2.10(a) or (b), and (vi) the parties to each
<PAGE>
such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes
subject to such assignment and a processing and recordation fee
of $3,000.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or
Issuing Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's or Issuing Bank's
rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Lender Party assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with this Agreement or any other Loan Document
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any
other Loan Document or any other instrument or document furnished
pursuant hereto or thereto; (ii) such assigning Lender Party
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan
Party of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto; (iii)
such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender
Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental
<PAGE>
thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a
Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Accep-
tance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lender Parties and
the Commitment under each Facility of, and principal amount of
the Advances owing under each Facility to, each Lender Party from
time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lender
Parties may treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender Party at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender Party and an assignee, together
with any Note or Notes subject to such assignment and the
appropriate processing and reconciliation fee, the Administrative
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit A hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. In the case of any assignment by a
Lender, within five (5) Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the
surrendered Note or Notes a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by
it under a Facility pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Commitment hereunder
under such Facility, a new Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit C, D or E hereto, as the case
may be .
(f) The Issuing Bank may assign to an Eligible Assignee all
of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that
(i) each such assignment shall be to an Eligible Assignee and
(ii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,000.
(g) Each Lender Party may sell participations to one or
more Persons (other than any Loan Party or any of its Affiliates)
in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion
<PAGE>
of its Commitments, the Advances owing to it and the Note or
Notes, if any, held by it); provided, however, that (i) such
Lender Party's obligations under this Agreement (including,
without limitation, its Commitments) shall remain unchanged, (ii)
such Lender Party shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii)
such Lender Party shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Borrower, the
Administrative Agent and the other Lender Parties shall continue
to deal solely and directly with such Lender Party in connection
with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation
shall have any right to approve any amendment, waiver or other
modification of any provision of this Agreement or any other Loan
Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver,
modification or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to
such participation, or release all or substantially all of the
Collateral.
(h) Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant
to this Section 8.07, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the
Borrower furnished to such Lender Party by or on behalf of the
Borrower; provided, however, that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery
of an executed counterpart of a signature page to this Agreement
by telecopier shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The
Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to
its use of such Letter of Credit. Neither the Issuing Bank nor
any of its officers, directors, employees or agents shall be
<PAGE>
liable or responsible for: (a) the use that may be made of any
Letter of Credit or any acts or omissions of any beneficiary or
transferee in connection therewith; (b) the validity, sufficiency
or genuineness of documents, or of any endorsement thereon, even
if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the
Issuing Bank against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit,
except that the Borrower shall have a claim against the Issuing
Bank, and the Issuing Bank shall be liable to the Borrower, to
the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of
the Letter of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the
contrary.
SECTION 8.10. Confidentiality. Neither the Administrative
Agent nor any Lender Party shall disclose any Confidential
Information to any Person without the consent of the Borrower,
other than (a) to the Administrative Agent's or such Lender
Party's Affiliates and their officers, directors, employees,
agents and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial
process, (c) as required by the National Association of Insurance
Commissioners and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or
banking or insurance companies.
SECTION 8.11. JURISDICTION, ETC. (a) EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT
IS A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH NEW
YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY LENDER PARTY MAY OTHERWISE HAVE
<PAGE>
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY
JURISDICTION.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND
EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR
FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
SECTION 8.12. GOVERNING LAW. THIS AGREEMENT, THE NOTES AND
THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.13. WAIVER OF JURY TRIAL. EACH OF THE BORROWER,
THE LOAN PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
COLUMBUS MCKINNON CORPORATION
By: /s/Robert L. Montgomery, Jr.
Title: Executive Vice President
FLEET BANK, as Administrative Agent
By: /s/John J. Larry
Title: Vice President
FLEET BANK, as Initial Issuing Bank
By: /s/John J. Larry
Title: Vice President
FLEET BANK, as Swing Line Bank
By: /s/John J. Larry
Title: Vice President
<PAGE>
Initial Lenders
FLEET BANK
By: /s/ John J. Larry
Title: Vice President
<PAGE>
Initial Lenders
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as a Co-Agent and Lender
By: /s/ Tom Molitor
Title: Vice President
<PAGE>
Initial Lenders
GOLDMAN, SACHS & COMPANY, as a
Co-Agent and Lender
By:/s/John Urban
John Urban
Title: Authorized Signor
<PAGE>
Initial Lenders
MARINE MIDLAND BANK
By: /s/ Cary J. Haller
Title: Vice President
<PAGE>
Initial Lenders
BANKERS TRUST COMPANY
By: /s/Christopher Kinslow
Title: Vice President
<PAGE>
Initial Lenders
MANUFACTURERS AND TRADERS
TRUST COMPANY
By: /s/ Stephen J. Wydysk
Title: Vice President
<PAGE>
Initial Lenders
MELLON BANK
By: /s/ Sam S. Pepper, Jr.
Title: Vice President
<PAGE>
Initial Lenders
NATIONSBANK, N.A.
By:/s/Thomas J. Kane
Thomas J. Kane
Title: Corporate Finance Officer
<PAGE>
Initial Lenders
THE BANK OF NOVA SCOTIA
By:/s/J. Alan Edwards
J. Alan Edwards
Title:_____________________________
<PAGE>
Initial Lenders
KEYBANK NATIONAL ASSOCIATION
By: /s/ Karen A. Lee
Title: Vice President
<PAGE>
Initial Lenders
ABN-AMRO BANK N.V. NEW YORK BRANCH
By: /s/ Frances O. Logan
Title: Vice President
By: /s/ John M. Kinney
Title: Assistant Vice President
<PAGE>
Initial Lenders
TORONTO DOMINION (NEW YORK), INC.
By: /s/Debbie A. Greene
Debbie A. Greene
Title: Vice President
<PAGE>
Initial Lenders
CRESCENT/MACH I PARTNERS, L.P.
BY TCW ASSET MANAGEMENT COMPANY
ITS INVESMENT MANAGER
By: /s/Justin L. Driscoll
Title: Vice President
<PAGE>
Initial Lenders
ALLSTATE INSURANCE COMPANY
By: /s/ Patricia W. Wilson
Title: Authorized Signatory
By: /s/ Steven M. Laude
Title: Authorized Signatory
<PAGE>
Initial Lenders
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Patricia W. Wilson
Title: Authorized Signatory
By: /s/ Steven M. Laude
Title: Authorized Signatory
<PAGE>
Initial Lenders
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: /s/ John B. Joyce
Title: Managing Director
<PAGE>
Initial Lenders
PILGRIM AMERICA PRIME RATE TRUST
By:/s/Thomas C. Hunt
Thomas C. Hunt
Title: Portfolio Analyst
<PAGE>
Initial Lenders
NATIONAL CITY BANK OF PENNSYLVANIA
By:/s/Stephen C. Findlay
Stephen C. Findlay
Title: Senior Vice President
<PAGE>
Initial Lenders
KEYPORT LIFE INSURANCE COMPANY
By: /s/ David T.H. Yin
Title: Assistant Vice President
<PAGE>
Initial Lenders
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:/s/Kathleen A. Zarn
Kathleen A. Zarn
Title: Vice President
<PAGE>
Initial Lenders
SUMITOMO BANK LIMITED
By:/s/William N. Paty
William N. Paty
Title: Vice President and Manager
By:/s/James Drum
Title: Vice President (N.Y. Office)
<PAGE>
Initial Lenders
COMERICA BANK
By:/s/Chris Georvassilis
Chris Georvassilis
Title: Vice President
<PAGE>
Exhibit 99
SPRECKELS INDUSTRIES TO COMMENCE CASH TENDER OFFER FOR 11 1/2%
SENIOR SECURED NOTES DUE 2000
NOVEMBER 12, 1996 -- Columbus McKinnon announced today
that its majority-owned subsidiary, Spreckels Industries, Inc.,
now known as Yale Industries, Inc. (NASDAQ National Market
symbol: YALE) (the "Company"), intends to commence an offer to
purchase for cash, at a price equal to approximately 108.125% of
the outstanding principal amount, plus accrued interest, all $70
million of the Company's 11 1/2% Senior Secured Notes due 2000
(the "Notes"). The Company anticipates commencing the tender
offer (the "Tender Offer") on or about November 15, 1996. The
Dealer Manager for the Tender Offer will be Bear, Stearns & Co.
Inc.
Consummation of this Tender Offer is conditioned on,
among other things, the Company's receipt of tenders of Notes
constituting a majority in aggregate principal amount of the
outstanding Notes and the consent of the senior lenders to
Columbus McKinnon.
The consummation of the Tender Offer is also
conditioned upon receipt by the Company consents from the holders
of a majority in aggregate principal amount of the outstanding
Notes to eliminate substantially all of the restrictive covenants
and delete certain event of default provisions of the Indenture
pursuant to which the Notes were issued.
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