<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1996
REGISTRATION NO. 333-14975
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SWISHER INTERNATIONAL GROUP INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2121 13-3857632
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
------------------------
459 EAST 16TH STREET
JACKSONVILLE, FL 32206
(904) 353-4311
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
------------------------------
WILLIAM ZIEGLER, III
CHIEF EXECUTIVE OFFICER
SWISHER INTERNATIONAL GROUP INC.
459 EAST 16TH STREET
JACKSONVILLE, FL 32206
(904) 353-4311
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES OF ALL COMMUNICATIONS TO:
<TABLE>
<S> <C>
DONALD E. MCNICOL, ESQ. ROHAN S. WEERASINGHE, ESQ.
SCHNADER, HARRISON, SEGAL & LEWIS SHEARMAN & STERLING
330 MADISON AVENUE 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10022
(212) 973-8000 (212) 848-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 2 is being filed solely for the purpose of filing certain
exhibits to the Registration Statement (Registration No. 333-14975). This
Amendment No. 2 does not contain copies of the Prospectus included in the
Registration Statement or Part II thereof, which are unchanged from Amendment
No. 1, filed on November 14, 1996.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Darien, State of
Connecticut, on November 15, 1996.
SWISHER INTERNATIONAL GROUP INC.
By: /s/ ROBERT A. BRITTON
-----------------------------------------
Robert A. Britton
EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
Chairman of the Board,
WILLIAM ZIEGLER, III* Chief Executive Officer
- ------------------------------ and Director November 15, 1996
William Ziegler, III (principal executive
officer)
Chairman of the Executive
WILLIAM T. ZIEGLER* Committee, Chief
- ------------------------------ Operating Officer and November 15, 1996
William T. Ziegler Director
Executive Vice President,
/s/ ROBERT A. BRITTON Chief Financial Officer
- ------------------------------ and Director November 15, 1996
Robert A. Britton (principal financial and
accounting officer)
TIMOTHY MANN*
- ------------------------------ President and Director November 15, 1996
Timothy Mann
J. THOMAS RYAN, III* Executive Vice President-
- ------------------------------ Sales & Marketing and November 15, 1996
J. Thomas Ryan, III Director
NICHOLAS J. CEVERA, JR* Executive Vice
- ------------------------------ President-Operations and November 15, 1996
Nicholas J. Cevera, Jr Director
CYNTHIA Z. BRIGHTON*
- ------------------------------ Vice President-Financial November 15, 1996
Cynthia Z. Brighton Services and Director
C. KEITH HARTLEY*
- ------------------------------ Director November 15, 1996
C. Keith Hartley
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<S> <C> <C>
ALFRED F. LA BANCA*
- ------------------------------ Director November 15, 1996
Alfred F. La Banca
DONALD E. MCNICOL*
- ------------------------------ Vice Chairman of the Board November 15, 1996
Donald E. McNicol and Director
JOHN R. TWEEDY*
- ------------------------------ Director November 15, 1996
John R. Tweedy
*By: /s/ ROBERT A. BRITTON
-------------------------
Robert A. Britton
ATTORNEY-IN-FACT
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- ----------------------------------------------------------------------------------
<S> <C> <C>
*1.1. Form of U.S. Purchase Agreement.
*1.2. Form of International Purchase Agreement.
**3.1. Form of Amended and Restated Certificate of Incorporation of the Registrant.
**3.2. Form of Amended and Restated Bylaws of the Registrant.
*4.1. Specimen certificate.
*5.1. Opinion of Schnader, Harrison, Segal & Lewis.
**10.1. Form of Registration Rights Agreement between the Registrant and Hay Island.
**10.2. Form of Management Services Agreement between the Registrant and Hay Island.
**10.3. Employment Agreement dated October 23, 1996 between the Registrant and Timothy
Mann.
**10.4. Employment Agreement dated October 23, 1996 between the Registrant and J. Thomas
Ryan, III.
**10.5. Employment Agreement dated October 23, 1996 between the Registrant and Nicholas J.
Cevera, Jr.
**10.6. Employment Agreement dated October 23, 1996 between the Registrant and Robert A.
Britton.
10.7. Second Amended and Restated Credit Agreement, dated as of October 28, 1996,
between the Registrant and the Bank of Boston Connecticut, as administrative
agent, and the group of financial institution parties thereto.
**10.8. Management Incentive Plan.
**10.9. Form of 1996 Stock Option Plan.
**10.10. Supplemental Pension Program.
10.11. Form of Tax Sharing Agreement.
**16.1. Letter regarding change in certifying accountant.
**21.1. List of Subsidiaries.
**23.1. Consent of Coopers & Lybrand L.L.P., independent accountants.
*23.2. Consent of Schnader, Harrison, Segal & Lewis (included in Exhibit 5.1).
**24.1. Power of Attorney (contained on page II-5).
**27.1. Financial Data Schedule.
</TABLE>
- ------------------------
* To be provided by amendment.
** Previously filed.
<PAGE>
================================================================================
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
SWISHER INTERNATIONAL, INC.,
SWISHER INTERNATIONAL GROUP INC.
The Several Lenders
from Time to Time Parties Hereto,
BANK OF BOSTON CONNECTICUT,
as Administrative Agent
and
SOCIETE GENERALE,
as Documentation Agent
Dated as of October 28, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS.............................................. 2
1.1 Defined Terms............................................ 2
1.2 Other Definitional Provisions............................ 21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................... 21
2.1 Revolving Credit Commitments............................. 21
2.2 Procedure for Revolving Credit Borrowing................. 22
2.3 Commitment Fee........................................... 22
2.4 Termination or Reduction of Revolving Credit Commitments. 23
2.5 Term Loans............................................... 23
2.6 Procedure for Term Loan Borrowing........................ 24
2.7 Swing Line Commitment.................................... 24
2.8 Repayment of Loans; Evidence of Debt..................... 25
2.9 Optional Prepayments..................................... 27
2.10 Mandatory Prepayments.................................... 28
2.11 Conversion and Continuation Options...................... 29
2.12 Minimum Amounts and Maximum Number of Tranches........... 30
2.13 Interest Rates and Payment Dates......................... 30
2.14 Computation of Interest and Fees......................... 31
2.15 Inability to Determine Interest Rate..................... 31
2.16 Pro Rata Treatment and Payments.......................... 32
2.17 Illegality............................................... 33
2.18 Requirements of Law...................................... 33
2.19 Taxes.................................................... 34
2.20 Indemnity................................................ 36
2.21 Fees..................................................... 37
2.22 Letters of Credit........................................ 37
SECTION 3. REPRESENTATIONS AND WARRANTIES........................... 39
3.1 Financial Condition...................................... 39
3.2 No Change................................................ 40
3.3 Corporate Existence; Compliance with Law................. 40
3.4 Corporate Power; Authorization; Enforceable Obligations.. 40
3.5 No Legal Bar............................................. 41
3.6 No Material Litigation................................... 41
3.7 No Default............................................... 41
3.8 Ownership of Property; Liens............................. 41
3.9 Intellectual Property.................................... 42
<PAGE>
3.10 No Burdensome Restrictions............................... 42
3.11 Taxes.................................................... 42
3.12 Federal Regulations...................................... 42
3.13 ERISA.................................................... 43
3.14 Investment Company Act; Other Regulations................ 43
3.15 Subsidiaries............................................. 43
3.16 Purpose of Loans......................................... 43
3.17 Environmental Matters.................................... 43
3.18 Solvency................................................. 44
3.19 Security Documents....................................... 45
3.20 Regulation H............................................. 45
3.21 Accuracy of Information.................................. 45
SECTION 4. CONDITIONS PRECEDENT..................................... 46
4.1 Conditions to Initial Loans.............................. 46
4.2 Conditions to Each Loan.................................. 48
SECTION 5. AFFIRMATIVE COVENANTS.................................... 48
5.1 Financial Statements..................................... 48
5.2 Certificates; Other Information.......................... 49
5.3 Payment of Obligations................................... 50
5.4 Maintenance of Existence................................. 50
5.5 Maintenance of Property; Insurance....................... 50
5.6 Inspection of Property; Books and Records; Discussions... 51
5.7 Notices.................................................. 51
5.8 Environmental Laws....................................... 52
5.9 Additional Subsidiaries.................................. 52
5.10 After-Acquired Property.................................. 53
5.11 Foreign Subsidiary....................................... 53
5.12 Interest Rate Protection................................. 54
SECTION 6. NEGATIVE COVENANTS....................................... 54
6.1 Financial Condition Covenants............................ 54
6.2 Limitation on Indebtedness............................... 56
6.3 Limitation on Liens...................................... 57
6.4 Limitation on Guarantee Obligations...................... 58
6.5 Limitation on Fundamental Changes........................ 58
6.6 Limitation on Sale of Assets............................. 58
6.7 Limitation on Dividends.................................. 59
6.8 Limitation on Investments, Loans and Advances............ 60
-ii-
<PAGE>
6.9 Limitation on Optional Payments and Modifications
of Debt Instruments................................... 60
6.10 Limitation on Transactions with Affiliates............... 60
6.11 Limitation on Sales and Leasebacks....................... 60
6.12 Limitation on Changes in Fiscal Year..................... 61
6.13 Limitation on Negative Pledge Clauses.................... 61
6.14 Limitation on Lines of Business.......................... 61
SECTION 7. EVENTS OF DEFAULT........................................ 61
SECTION 8. GUARANTEE................................................ 64
8.1 Guarantee................................................ 64
8.2 Obligations Unconditional................................ 64
8.3 Reinstatement............................................ 66
8.4 Remedies................................................. 66
8.5 Continuing Guarantee..................................... 67
8.6 No Subrogation........................................... 67
SECTION 9. ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT............. 67
9.1 Appointment.............................................. 67
9.2 Delegation of Duties..................................... 68
9.3 Exculpatory Provisions................................... 68
9.4 Reliance by Administrative Agent......................... 68
9.5 Notice of Default........................................ 69
9.6 Non-Reliance on Administrative Agent, and Other Lenders.. 69
9.7 Indemnification.......................................... 70
9.8 Administrative Agent in Its Individual Capacity.......... 70
9.9 Successor Administrative Agent........................... 70
9.10 The Documentation Agent.................................. 71
SECTION 10. MISCELLANEOUS............................................ 71
10.1 Amendments and Waivers................................... 71
10.2 Notices.................................................. 72
10.3 No Waiver; Cumulative Remedies........................... 72
10.4 Survival of Representations and Warranties............... 73
10.5 Payment of Expenses and Taxes............................ 73
10.6 Successors and Assigns; Participation and Assignments.... 74
10.7 Adjustments; Set-off..................................... 76
10.8 Counterparts............................................. 77
10.9 Severability............................................. 77
10.10 Integration.............................................. 77
10.11 GOVERNING LAW............................................ 77
-iii-
<PAGE>
10.12 Submission To Jurisdiction; Waivers...................... 77
10.13 Acknowledgments.......................................... 78
10.14 WAIVERS OF JURY TRIAL.................................... 78
10.15 Confidentiality.......................................... 79
-iv-
<PAGE>
SCHEDULES
Schedule 1 Lenders' Commitments and Addresses for Notices
Schedule 3.1 Liabilities
Schedule 3.6 Litigation
Schedule 3.8 Properties
Schedule 3.13 ERISA Matters
Schedule 3.19(c) Mortgage Filing Offices
Schedule 6.4(a) Guarantee Obligations
-v-
<PAGE>
EXHIBITS
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Term Note A
Exhibit A-3 Form of Term Note B
Exhibit A-4 Form of Swing Line Note
Exhibit B Form of Amended and Restated Subsidiaries Guarantee
Exhibit C-1 Form of Amended and Restated Borrower Security
Agreement
Exhibit C-2 Form of Amended and Restated Subsidiaries Security
Agreement
Exhibit D-1 Form of Amended and Restated Parent Stock Pledge
Agreement
Exhibit D-2 Form of Amended and Restated Borrower Stock Pledge
Agreement
Exhibit D-3 Form of Amended and Restated Subsidiaries Note Pledge
Agreement
Exhibit E Form of Amendment, Affirmation and Consent
Exhibit F Form of Borrowing Certificate
Exhibit G Form of Legal Opinion of Schnader, Harrison, Segal
& Lewis
Exhibit H [Intentionally Left Blank]
Exhibit I Form of Swing Line Loan Participation Certificate
Exhibit J Form of Assignment and Acceptance
Exhibit K Form of Solvency Certificate
-vi-
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 28,
1996, among (i) SWISHER INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), (ii) SWISHER INTERNATIONAL GROUP INC., formerly known as Royal
American Holding Corporation, a Delaware corporation and the direct parent of
the Borrower (the "Parent"), (iii) the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), (iv)
SOCIETE GENERALE, as Documentation Agent and (v) BANK OF BOSTON CONNECTICUT, a
Connecticut banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, as more fully defined in Section 1.1, the
"Administrative Agent").
Recitals
A. The Borrower, the Parent, Holdings, the Lenders parties thereto,
Societe Generale and the Administrative Agent entered into the Existing Credit
Agreement pursuant to which the Lenders established in favor of the Borrower a
$35 million revolving credit facility (including thereunder a $5 million swing
line loan facility) and a $126,875,000 term loan facility.
B. The Borrower, the Parent, the Lenders and the Administrative Agent have
agreed to enter into this Second Amended and Restated Credit Agreement to (i)
modify the credit facilities provided for in the Existing Credit Agreement based
on the terms requested by the Borrower and (ii) make certain changes to the
Existing Credit Agreement.
C. The Administrative Agent has arranged a syndicate of lenders to make
the Loans. The Lenders are willing to make the Loans described below based on
the terms and conditions set forth in this Second Amended and Restated Credit
Agreement.
Amendment and Restatement
The Borrower, the Parent, the Lenders and the Administrative Agent hereby
agree that upon the effectiveness of this Agreement, the terms and provisions of
the Existing Credit Agreement shall be and hereby are amended and restated in
their entirety by the terms and conditions of this Agreement and the terms and
provisions of the Existing Credit Agreement shall be superseded by this
Agreement.
Notwithstanding the amendment and restatement of the Existing Credit
Agreement by this Agreement, the Borrower, the Parent and Holdings shall
continue to be liable to the Administrative Agent and the Lenders with respect
to agreements and obligations on the part of the Borrower, the Parent and
Holdings under the Existing Credit Agreement to indemnify and hold harmless the
Administrative Agent and the Lenders from and against all claims, demands,
liabilities, damages, losses, costs, charges and expenses to which the
<PAGE>
2
Administrative Agent and the Lenders may be subject arising in connection with
the Existing Credit Agreement.
Notwithstanding the amendment and restatement of the Existing Credit
Agreement by this Agreement, all of the indebtedness, liabilities and
obligations owing by the Borrower under the Existing Credit Agreement shall
continue to be secured by the "Collateral" (as defined in the Existing Credit
Agreement) and the Borrower acknowledges and agrees that such "Collateral"
remains subject to a security interest in favor of Bank of Boston Connecticut in
its capacity as Administrative Agent hereunder for the benefit of the Lenders
and to secure the obligations of the Borrower re-evidenced by this Agreement.
This Agreement is given as a substitution, and not as payment, of the
obligations of the Borrower under the Existing Credit Agreement and is not
intended to constitute a novation of the Existing Credit Agreement. All
"Revolving Credit Loans" (as defined in the Existing Credit Agreement) which are
outstanding and owing by the Borrower under the Existing Credit Agreement as of
the Closing Date, as determined by the Administrative Agent, shall constitute
Revolving Credit Loans hereunder, all "Term Loans" (as defined in the Existing
Credit Agreement) which are outstanding and owing by the Borrower under the
Existing Credit Agreement as of the Closing Date, as determined by the
Administrative Agent, shall constitute the A Term Loan hereunder, and all "Swing
Line Loans" (as defined in the Existing Credit Agreement) which are outstanding
and owing by the Borrower under the Existing Credit Agreement as of the Closing
Date, as determined by the Administrative Agent, shall constitute Swing Line
Loans hereunder.
Agreement
In consideration of the premises and the covenants herein set forth, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following terms shall
have the following meanings:
"A Term Loan": as defined in Section 2.5.
"Administrative Agent": Bank of Boston Connecticut, together with its
affiliates, as the agent for the Lenders under this Agreement and the other Loan
Documents.
"Affiliate": as to any Person, any other Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control" of
a Person means the power,
<PAGE>
3
directly or indirectly, either to (a) vote 5% or more of the securities having
ordinary voting power for the election of directors of such Person or (b) direct
or cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agreement": this Second Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"AMPCo": American Maize - Products Company, a Maine corporation.
"AMPCo Equity Interest": the 12% of the common stock of Holdings owned by
AMPCo.
"Amendment, Affirmation and Consent": the Amendment, Affirmation and
Consent dated as of the date hereof among the Borrower, the Parent, the Lenders
and the Administrative Agent, substantially in the form of Exhibit E.
"Amendment Fee": an amount equal to 0.125% of each Lender's Commitments
(other than with respect to Swing Line Loans) under this Agreement up to the
amount of such Lender's Original Commitment Level.
"Applicable Margin": for each Type of Loan, the rate per annum set forth
under the relevant column heading below:
A Term Loan and Revolving Credit Loans
Ratio of Indebtedness to EBITDA Base Rate Loans Eurodollar Loans
- ------------------------------- --------------- ----------------
Greater than or equal to 3.25
to 1 1.00% 2.50%
Greater than or equal to 3.00
to 1 and less than 3.25 to 1 0.75% 2.25%
Greater than or equal to 2.50
to 1 and less than 3.00 to 1 0.50% 2.00%
Greater than or equal to 2.00
to 1 and less than 2.50 to 1 0.25% 1.75%
Less than 2.00 to 1 0.00% 1.25%
<PAGE>
4
B Term Loan
Ratio of Indebtedness to EBITDA Base Rate Loans Eurodollar Loans
- ------------------------------- --------------- ----------------
Greater than or equal to 3:25 to 1 1.50% 3.00%
Greater than or equal to 3:00 to 1
and less than 3:25 to 1 1.25% 2.75%
Greater than or equal to 2:50 to 1
and less than 3:00 to 1 1.00% 2.50%
Greater than or equal to 2:00 to 1
and less than 2:50 to 1 0.75% 2.25%
Less than 2:00 to 1 0.50% 1.75%
For purposes of the foregoing, any change in the Applicable Margin based
on a change in the ratio of Indebtedness to EBITDA shall be effective for all
purposes on and after the date of delivery to the Administrative Agent of the
certificate required under Section 5.2(b)(ii) hereof (except that with respect
to the B Term Loan, such change, if any, shall be effective commencing with the
results of the Borrower for the third quarter 1996, and may change based on the
results of the Borrower for each succeeding quarter). Any change in the
Applicable Margin due to a change in the ratio of Indebtedness to EBITDA shall
be effective on the effective date of such change in the ratio and shall apply
to all Eurodollar Loans made on or after the commencement of the period (and to
Base Rate Loans that are outstanding at any time during the period) commencing
on the effective date of such change in the ratio of Indebtedness to EBITDA and
ending on the date immediately preceding the effective date of the next such
change in the ratio of Indebtedness to EBITDA.
"Application": an application by the Borrower, in a form and containing
terms and provisions acceptable to the Issuing Lender, for the issuance by the
Issuing Lender of a Letter of Credit.
"Asset Sale": any sale, sale-leaseback, or other disposition by the
Parent, the Borrower or any Subsidiary thereof of any of its property or assets,
including the stock of any Subsidiary of Parent.
"Assignee": as defined in Section 10.6(c).
<PAGE>
5
"Available Commitment": as to any Lender at any time, an amount equal to
the excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment over (b) the sum of (i) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding, (ii) such Lender's
Revolving Credit Commitment Percentage of the aggregate unpaid principal amount
at such time of all Swing Line Loans, and (iii) such Lender's Revolving Credit
Commitment Percentage of Letter of Credit Obligations.
"B Term Loan Commitment Fee": 0.50% per annum.
"B Term Loan Draw Date": June 12, 1996.
"B Term Loan": as defined in Section 2.5.
"Base Rate": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by The First National Bank of Boston
as its base rate in effect at its principal office in Boston (the Prime Rate not
being intended to be the lowest rate of interest charged by The First National
Bank of Boston in connection with extensions of credit to debtors); and "Federal
Funds Effective Rate" shall mean, for any day, 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 on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is based
upon the Base Rate.
"Borrower": as defined in the introductory paragraph hereto.
"Borrower Mortgages": the Mortgages, Leasehold Mortgages, Deeds of Trust
and Deeds to Secure Debt previously executed and delivered by the Borrower on
the Original Closing Date, as modified by the Mortgage Modification Agreements
covering the Fee Properties and the Wheeling, West Virginia, leasehold listed on
Schedule 3.8, as the same may be amended, supplemented or otherwise modified
from time to time.
<PAGE>
6
"Borrower Security Agreement": the Amended and Restated Security Agreement
dated April 9, 1996, to be effective as of April 12, 1996, substantially in the
form of Exhibit C-1, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Security Documents": the collective reference to the Borrower
Security Agreement, the Borrower Stock Pledge Agreement and the Borrower
Mortgages and any other document that may at any time be delivered to the
Administrative Agent as security for any Loan Party's obligations hereunder or
under any other Loan Document, as any of the foregoing may be amended,
supplemented or otherwise modified from time to time.
"Borrower Stock Pledge Agreement": the Amended and Restated Borrower Stock
Pledge Agreement dated April 9, 1996, to be effective as of April 12, 1996,
substantially in the form of Exhibit D-2, as the same may be amended,
supplemented or otherwise modified from time to time.
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.2, 2.6 or 2.7(a) as a date on which the Borrower requests the Lenders
to make Loans hereunder.
"Business": as defined in Section 3.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City and Stamford, Connecticut, are authorized or
required by law to close.
"Capital Stock": any and all shares, interests, participation or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof, (b) certificates of deposit and
Eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with respect to
securities issued or fully
<PAGE>
7
guaranteed or insured by the United States Government, (d) commercial paper of a
domestic issuer rated at least A-2 by Standard and Poor's Rating Group ("S&P")
or P-2 by Moody's Investors Service, Inc. ("Moody's"), (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by Moody's (or
the equivalent rating by either such rating agency for such type of securities),
(f) securities with maturities of one year or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition or (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
"Cash Flow": for any period, Net Income for such period, plus the sum of
(i) depreciation expense and amortization expense deducted from earnings in
determining such Net Income, (ii) the net increase during such period (if any)
in deferred tax accounts and (iii) Interest Expense and minus the sum of (i) the
net decrease during such period (if any) in deferred tax accounts and (ii) the
aggregate amount actually paid in cash during such period on account of capital
expenditures permitted hereunder (but only to the extent not financed by capital
contributions), in each case, determined on a consolidated basis in accordance
with GAAP.
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 with respect to the making of the Revolving Loans, the A Term Loan
and the B Term Loan shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Collateral": all assets of the Loan Parties, now owned or hereinafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": as to any Lender, such Lender's Swing Line Commitment (if
any), Revolving Credit Commitment and Term Loan Commitment, collectively.
"Commitment Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment (or Revolving Credit Commitment or Term Loan
Commitment, as the context may require) (other than the Swing Line Commitment)
then constitutes of the aggregate Commitments (or Revolving Credit Commitments
or Term Loan Commitments, respectively) (other than the Swing Line Commitment)
or, at any time after such Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender's Loans (or
Revolving Credit Loans or Term Loans, respectively) (including, in the case of
Revolving Credit Loans, such Lender's Revolving Credit Commitment Percentage of
the aggregate unpaid principal amount at such time of all Swing Line Loans) then
outstanding constitutes of the aggregate principal
<PAGE>
8
amount of the Loans (or Revolving Credit Loans (and Swing Line Lines) or Term
Loans, respectively) then outstanding.
"Commitment Period": the period from and including the date hereof to but
not including the Termination Date or such earlier date on which the Revolving
Credit Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Current Assets": at the date of determination, all assets of Holdings
which, in accordance with GAAP, would be classified on a consolidated balance
sheet of Holdings as current assets other than cash.
"Current Liabilities": at the date of determination, all liabilities of
Holdings which, in accordance with GAAP, would be classified on a consolidated
balance sheet of Holdings as current liabilities, other than the current portion
of Indebtedness permitted hereunder.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Documentation Agent": Societe Generale, in its capacity as Documentation
Agent.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary which is not a Foreign Subsidiary.
"EBITDA": for any period, the sum of (i) Net Income for such period, (ii)
Interest Expense for such period and (iii) the amount of taxes, depreciation and
amortization deducted from earnings in determining such Net Income.
"Environmental Laws": any and all foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees,
<PAGE>
9
requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as may have previously been, now are or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate of interest determined on the
basis of the rate for deposits in dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate Service as of 11:00 a.m., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate Service (or otherwise on such service),
the "Eurodollar Base Rate" shall be determined by reference to such other
publicly available service for displaying Eurodollar rates as may be agreed upon
by the Administrative Agent and the Borrower or, in the absence of such
agreement, the "Eurodollar Base Rate" shall instead be the rate per annum equal
to the rate at which the Administrative Agent is offered dollar deposits at or
about 10:00 a.m., New York City time, two (2) Business Days prior to the
beginning of such Interest Period in the interbank Eurodollar market where the
Eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/l00th of
1%):
<PAGE>
10
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans for
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Excess Cash Flow": for any period, Cash Flow for such period, plus the
net decrease during such period (if any) in Working Capital and minus the sum of
(i) the net increase during such period (if any) in Working Capital and (ii)
scheduled principal payments on Indebtedness of the Parent and its Subsidiaries
not prohibited hereunder during such period; notwithstanding the foregoing, any
proceeds which the Borrower receives in connection with the survivorship
insurance policy no. 1179512G issued by Security Connecticut owned by the
Borrower on the lives of William Ziegler, III ("Mr. Ziegler") and Jane Ziegler
("Mrs. Ziegler") shall be excluded from Excess Cash Flow to the extent, and only
to the extent, that the Borrower utilizes such proceeds to purchase all or a
portion of the then outstanding Capital Stock of Holdings owned by the survivor
of Mr. Ziegler and Mrs. Ziegler.
"Existing Credit Agreement": the Amended and Restated Credit Agreement
dated April 9, 1996, to be effective as of April 12, 1996, among the Borrower,
the Parent, Holdings, the Lenders, Societe Generale, as Documentation Agent, and
Bank of Boston Connecticut, as Administrative Agent, as amended, modified or
supplemented from time to time.
"Existing Indebtedness": all Indebtedness outstanding under the 1995
Credit Agreement on the Original Closing Date.
"Fee Property": as defined in Section 3.8.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charges": for any period, the sum of:
(a) Interest Expense;
<PAGE>
11
(b) required amortization of Indebtedness for the period involved
and discount or premium relating to any such Indebtedness for any period
involved, whether expensed or capitalized; and
(c) all Restricted Payments made by the Parent or any Subsidiary
during such period, in each case of the Parent and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Foreign Subsidiary": any Subsidiary of the Borrower which (a) is
organized under the laws of any jurisdiction outside the United States of
America or (b) conducts the major portion of its business outside of the United
States of America.
"Fronting Fee": an amount equal to one-eighth of one percent (0.125%) of
the face amount of each Letter of Credit.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time, except that in connection with any
calculation of any amount referenced, directly or indirectly, in Section 6.1,
"GAAP" shall mean generally accepted accounting principles in the United States
of America on the date hereof consistent with those utilized in preparing the
audited financial statements referred to in Section 3.1.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counter indemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of
<PAGE>
12
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guaranteed Obligations": as defined in Section 8.1.
"Guarantees": the collective reference to the Parent Guarantee and the
Subsidiaries Guarantee.
"Guarantor": any Person delivering or making a Guarantee pursuant to this
Agreement.
"Holdings": Hay Island Holding Corporation, a Delaware corporation and the
direct parent of the Parent.
"Indebtedness": of any Person at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of acceptances or letters of
credit issued or created for the account of such Person and (e) all liabilities
secured by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Expense": for any period, the amount of interest expense of
Holdings and its Subsidiaries, in each case determined on a consolidated basis
in accordance with GAAP for such period.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day of
each March, June, September and December, (b) as to any Eurodollar Loan having
an Interest Period of three months or less, the last day of such Interest
Period, and (c) as to any
<PAGE>
13
Eurodollar Loan having an Interest Period longer than three months, each day
which is three months or a whole multiple thereof after the first day of such
Interest Period and the last day of such Interest Period.
"Interest Period": With respect to any Eurodollar Loan:
(i) initially, the period commencing on the Closing Date and
continuing through April 30, 1996; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless the result of
such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date or beyond the date final payment is due on the Term Loans
shall end on the Termination Date or such date of final payment, as the
case may be;
(3) any Interest Period pertaining to a Eurodollar Loan that begins
on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar
month; and
(4) the Borrower shall select Interest Periods so as not to require
a payment or prepayment of any Eurodollar Loan during an Interest Period
for such Loan.
"Interest Rate Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements entered into by the Borrower with the
Administrative Agent providing for protection against fluctuations in interest
rates or currency exchange
<PAGE>
14
rates or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"IPO" the initial public offering of equity securities by the Parent
pursuant to a Registration Statement on Form S-1 to be filed with the Securities
and Exchange Commission on or about the Closing Date.
"Issuing Lender": Bank of Boston Connecticut or any other Lender (with the
prior consent and agreement of such Lender), each in its capacity as issuer of
the Letters of Credit.
"L/C Draft": a draft drawn on the Issuing Lender pursuant to a Letter of
Credit.
"Leased Property": as defined in Section 3.8.
"Lenders": as defined in the introductory paragraph hereto.
"Letter of Credit": any letter of credit issued by the Issuing Lender, in
its discretion, on the Application of the Borrower.
"Letter of Credit Fee": the amount equal to, from time to time, the
Applicable Margin per annum for Eurodollar Loans constituting Revolving Credit
Loans.
"Letter of Credit Obligations": as to the Borrower, at any time of
determination, an amount equal to the aggregate of undrawn amounts of all
Letters of Credit plus the aggregate of all unpaid obligations of the Borrower
to reimburse the Issuing Lender for amounts drawn under all Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes, the Guarantees, the Security
Documents, the Applications and any other agreement or document executed or
delivered in connection with the Letters of Credit and the Interest Rate Hedge
Agreements.
<PAGE>
15
"Loan Parties": the Borrower, the Parent and each Subsidiary of the
Borrower which is a party to a Loan Document.
"Material Adverse Effect": a material adverse effect on, (a) the business,
operations, property, condition (financial or otherwise) or prospects of the
Parent and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Environmental Amount": an amount payable by the Parent and/or
its Subsidiaries in excess of $1,000,000 for remedial costs, compliance costs,
compensatory damages, punitive damages, fines, penalties or any combination
thereof.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under,
or which could otherwise give rise to any liability under, any Environmental
Law, including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Mortgage Modification Agreements": the agreements pursuant to which the
Mortgages were modified.
"Mortgages": the collective reference to the Borrower Mortgages and each
other Mortgage, Leasehold Mortgage, Deed of Trust and Deed to Secure Debt made
after the date hereof pursuant to Section 5.10(a).
"Multiemployer Plan": a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Income": for any period, net income of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP (but in
any case not including payments received by the Borrower or any Subsidiary in
respect of the Wheeling Bonds).
"Net Proceeds": the aggregate cash proceeds received by the Borrower or
any Subsidiary thereof in respect of:
(a) any Asset Sale; or
(b) any cash payments received in respect of promissory notes
delivered to the Borrower or such Subsidiary in respect of an Asset Sale;
<PAGE>
16
in each case net of (without duplication) (A) the amount required to repay any
Indebtedness (other than the Loans) secured by a Lien on any assets of the
Parent, the Borrower or a Subsidiary of the Borrower that are collateral for any
such debt securities or loans that are sold or otherwise disposed of in
connection with such Asset Sale, (B) the reasonable expenses (including legal
fees and brokers' and underwriters' commissions, lenders fees or credit
enhancement fees, in any case, paid to third parties or, to the extent permitted
hereby, Affiliates) incurred in effecting such issuance or sale and (C) any
taxes reasonably attributable to such sale and reasonably estimated by the
Parent, the Borrower or such Subsidiary to be actually payable.
"Net Worth": as of the date of determination, all items which in
conformity with GAAP would be included under shareholders' equity on a
consolidated balance sheet of the Borrower at such date (including consistent
treatment under EITF 88-16 on the Closing Date and thereafter).
"Net Worth Increase Amount": the amount by which $40 million exceeds the
Seller Purchase Amount.
"Non-Excluded Taxes": as defined in Section 2.19(a).
"Notes": the collective reference to the Swing Line Note, the Revolving
Credit Notes and the Term Notes.
"Original Commitment Level": for each Lender, such Lender's Commitments as
of the Closing Date under the Existing Credit Agreement, as determined by the
Administrative Agent.
"Original Closing Date": April 9, 1996.
"Parent": as defined in the introductory paragraph hereto.
"Parent Guarantee": the guarantee of the Guaranteed Obligations by the
Parent pursuant to Section 8.
"Parent Stock Pledge Agreement": the Amended and Restated Stock Pledge
Agreement dated April 9, 1996, to be effective as of April 12, 1996,
substantially in the form of Exhibit D-1, as the same may be amended,
supplemented or otherwise modified from time to time.
"Participant": as defined in Section 10.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
<PAGE>
17
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered
by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": collectively, the Stock Pledge Agreements and the
Subsidiaries Note Pledge Agreement.
"Pro Forma Balance Sheet": as defined in Section 3.1(b).
"Properties": as defined in Section 3.17(a).
"Refunded Swing Line Loans": as defined in Section 2.7(b).
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition
that such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty (30) day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss. 2615.
"Required Lenders": at any time, Lenders the Commitment Percentages of
which aggregate more than 51%.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": any of the chief executive officer, chief operating
officer, president or, with respect only to financial matters, chief financial
officer of the Borrower.
"Restricted Payments": as defined in Section 6.7.
<PAGE>
18
"Revolving Credit Commitment": as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to the Borrower hereunder in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I, as such amount may be reduced from
time to time in accordance with the provisions of this Agreement.
"Revolving Credit Commitment Fee": on and after any date specified below
on which the Revolving Credit Commitment Fee is to be adjusted, the rate per
annum set forth in the table below opposite the applicable ratio of Indebtedness
to EBITDA:
Ratio of Indebtedness to EBITDA Revolving Credit Commitment Fee
------------------------------- -------------------------------
Greater than or equal to 3.00 to 1 0.500%
Less than 3.00 to 1 or greater than
or equal to 2.00 to 1 0.375%
Less than 2.00 to 1 0.250%
For purposes of the foregoing, any change in the Revolving Credit
Commitment Fee based on a change in the ratio of Indebtedness to EBITDA shall be
effective for all purposes on and after the date of delivery to the
Administrative Agent of the certificate required under Section 5.2(b)(ii) hereof
and such change shall be effective commencing on the effective date of such
change in the ratio of Indebtedness to EBITDA and ending on the date immediately
preceding the effective date of the next such change in the ratio of
Indebtedness to EBITDA.
"Revolving Credit Loans": as defined in Section 2.1(a).
"Revolving Credit Note": as defined in Section 2.8(e).
"Security Agreements": the collective reference to the Borrower Security
Agreement and the Subsidiaries Security Agreement.
"Security Documents": the collective reference to the Security Agreements,
the Stock Pledge Agreements, the Subsidiaries Note Pledge Agreement, the
Mortgages and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any Person to
secure the obligations and liabilities of the Borrower hereunder and under any
of the other Loan Documents or to secure any guarantee of any such obligations
and liabilities.
<PAGE>
19
"Seller Note": the 6% Seller Note due 2002 issued by the Parent to AMPCo
in the principal amount of $20 million.
"Seller Purchase Amount": the aggregate amount paid by the Borrower to
satisfy the indebtedness of the Seller Note and the repurchase of the AMPCo
Equity Interest.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvency Certificate": the Solvency Certificate substantially in the form
of Exhibit K.
"Solvent": with respect to any Person on a particular date, the condition
that on such date, (a) 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, (b) 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
mature, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (d) 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 amount of capital.
"Stock Pledge Agreements": the collective reference to the Borrower Stock
Pledge Agreement and the Parent Stock Pledge Agreement.
"Subsidiaries Guarantee": the Amended and Restated Guarantee to be
executed and delivered by each Domestic Subsidiary, substantially in the form of
Exhibit B, as the same may be amended, supplemented or otherwise modified from
time to time.
"Subsidiaries Note Pledge Agreement": the Amended and Restated Note Pledge
Agreement dated April 9, 1996, to be effective as of April 12, 1996,
substantially in the form of Exhibit D-3, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subsidiaries Security Agreement": the Amended and Restated Security
Agreement to be executed and delivered by each Domestic Subsidiary in favor of
the Administrative Agent, substantially in the form of Exhibit C-2, as the same
may be amended, supplemented or otherwise modified from time to time.
"Subsidiaries Security Documents": the collective reference to the
Subsidiaries Security Agreement and the Subsidiaries Note Pledge Agreement.
<PAGE>
20
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
Parent.
"Swing Line Commitment": the Swing Line Lender's obligation to make Swing
Line Loans pursuant to Section 2.7.
"Swing Line Lender": Bank of Boston Connecticut, in its capacity as lender
of the Swing Line Loans.
"Swing Line Loan Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Swing Line Loans": as defined in Section 2.7(a).
"Swing Line Note": as defined in Section 2.8(e).
"Term Loans": collectively, the A Term Loan and the B Term Loan.
"Term Loan Commitment": as to any Lender, the obligation of such Lender to
make Term Loans to the Borrower hereunder in an aggregate principal amount equal
to the amount set forth opposite such Lender's name on Schedule I.
"Term Note": as defined in Section 2.8(e).
"Termination Date": November 1, 2000.
"Title Insurance Company": as defined in Section 4.1(ac).
"Transferee": as defined in Section 10.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a Eurodollar
Loan.
"Wheeling Bonds": collectively, the Series 1992A and Series 1992B
Industrial Development Revenue Bonds (Helme Tobacco Company Project) issued by
Ohio County, West Virginia, acting by and through The County Commission of Ohio
County, West Virginia, which bonds are owned by Swisher International Finance
Company.
<PAGE>
21
"Working Capital": at any date, Current Assets minus Current Liabilities,
in each case at such date.
"Ziegler Trusts": the trusts created under the Wills of Helen M. Rivoire
and William Ziegler, Jr.
"1995 Credit Agreement": the Credit Agreement dated as of November 6,
1995, among the Borrower, the Parent, Holdings, the Lenders party thereto as of
such date, Lehman Commercial Paper Inc., as Advisor, Syndication Agent and
Arranger, Societe Generale, as Documentation Agent, and Bank of Boston
Connecticut, as Administrative Agent, as amended, modified or supplemented from
time to time.
1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms
partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "thereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural form of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1. Revolving Credit Commitments.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrower from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed the amount of such
Lender's Revolving Credit Commitment less the product of (x) such Lender's
Revolving Credit Commitment Percentage and (y) Letter of Credit Obligations.
Notwithstanding the above, in no event shall any Revolving Credit
<PAGE>
22
Loans be made if the aggregate amount of the Revolving Credit Loans to be made
less aggregate Letter of Credit Obligations would, after giving effect to the
use of proceeds thereof, exceed the aggregate Available Commitments. During the
Commitment Period the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans, or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.11, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan after the day that is one month prior to the
Termination Date.
2.2. Procedure for Revolving Credit Borrowing. The Borrower may borrow
under the Revolving Credit Commitments during the Commitment Period on any
Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed,
(ii) the requested Borrowing Date, (iii) whether the borrowing is to be of
Eurodollar Loans, Base Rate Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Periods therefor. Each borrowing under the Revolving Credit Commitments
shall be in an amount equal to (x) in the case of Base Rate Loans, $500,000 or a
whole multiple of $100,000 in excess thereof (or the full amount of the then
Available Commitments) and (y) in the case of Eurodollar Loans, $1,000,000 or a
whole multiple of $100,000 in excess thereof, subject to the provisions of
Section 2.12, except that any borrowing under the Revolving Credit Commitments
to be used solely to pay a like amount of Swing Line Loans may be in the
aggregate principal amount of such Swing Line Loans. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its Commitment Percentage of
each borrowing available to the Administrative Agent for the account of the
Borrower at the office of the Administrative Agent specified in Section 10.2
prior to 1:00 P.M., New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.3. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender the Revolving Credit Commitment Fee for the period
from
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23
and including the first day of the Commitment Period to the Termination Date,
computed on the average daily amount of the Available Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination Date
or such earlier date as the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent on the
Closing Date for the account of each Lender the Amendment Fee.
(c) (i) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender which has a Revolving Credit Loan Commitment, the
Letter of Credit Fee computed on the average outstanding undrawn amount of
Letters of Credit, payable in arrears (i) for the preceding fiscal quarter on
the first day of each fiscal quarter commencing October 1, 1996, and (ii) on the
Termination Date. The Letter of Credit Fee shall be increased by 2% upon the
occurrence of an Event of Default.
(ii) The Borrower agrees to pay the Administrative Agent for
the account of the Issuing Lender the Fronting Fee simultaneously with the
issuance of each Letter of Credit by the Issuing Lender.
2.4. Termination or Reduction of Revolving Credit Commitments.
(a) The Borrower shall have the right, upon not less than five
Business Days notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments. Any such reduction shall be in an amount equal to $1,000,000
or a whole multiple thereof and shall reduce permanently the Revolving Credit
Commitments then in effect.
(b) Any reduction of the Revolving Credit Commitments provided for
in this Section 2.4 shall be accompanied by prepayment of first, Swing Line
Loans and second, Revolving Credit Loans to the extent, if any, that the sum of
the aggregate outstanding principal amount of Swing Line Loans and Revolving
Credit Loans exceeds the amount of the aggregate Revolving Credit Commitments as
so reduced.
2.5. Term Loans. (a) Subject to the terms and conditions hereof, each
Lender has severally made a term loan (the "A Term Loan") to the Borrower on the
Original Closing Date in an amount equal to the amount of the Term Loan
Commitment for such A Term Loan of such Lender then in effect. The A Term Loan
shall be (i) a Eurodollar Loan, (ii) a Base Rate Loan, or (iii) a combination
thereof, as determined by the Borrower and notified to the Administrative Agent
in accordance with Section 2.11.
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24
(b) Subject to the terms and conditions hereof, each Lender has
severally made a term loan (the "B Term Loan") to the Borrower on the B Term
Loan Draw Date in an amount equal to the amount of the Term Loan Commitment for
such B Term Loan of such Lender then in effect. The B Term Loan shall be (i) a
Eurodollar Loan, (ii) a Base Rate Loan, or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Section 2.11.
2.6. Procedure for Term Loan Borrowing. The Borrower acknowledges that the
A Term Loan and the B Term Loan have been fully drawn.
2.7. Swing Line Commitment.
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees to make swing line loans ("Swing Line Loans") to the Borrower from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed $5,000,000, provided that in no event
shall any Swing Line Loans be made if the aggregate amount of the Swing Line
Loans to be made would, after giving effect to the use of proceeds thereof,
exceed the aggregate Available Commitments. Amounts borrowed by the Borrower
under this Section 2.7 may be repaid and, through but excluding the Termination
Date, reborrowed. All Swing Line Loans shall be made as Base Rate Loans and
shall not be entitled to be converted into Eurodollar Loans. The Borrower shall
give the Swing Line Lender irrevocable notice (which notice must be received by
the Swing Line Lender prior to 3:00 p.m., New York City time) on the requested
Borrowing Date specifying the amount of each requested Swing Line Loan, which
shall be in an aggregate minimum amount of $500,000 or a whole multiple of
$100,000 in excess thereof. The proceeds of each Swing Line Loan will be made
available by the Swing Line Lender to the Borrower by crediting the account of
the Borrower at the office of the Swing Line Lender with such proceeds. The
proceeds of Swing Line Loans may be used solely for the purposes referred to in
Section 3.16.
(b) The Swing Line Lender at any time in its sole and absolute
discretion may, and on the fifteenth day (or if such day is not a Business Day,
the next Business Day) and last Business Day of each month shall, on behalf of
the Borrower (which hereby irrevocably directs the Swing Line Lender to act on
its behalf) request each Lender, including the Swing Line Lender, to make a
Revolving Credit Loan in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the amount of the Swing Line Loans (the "Refunded Swing
Line Loans") outstanding on the date such notice is given. Unless any of the
events described in clause (f) of Section 7 shall have occurred (in which event
the procedures of Section 2.7(c) shall apply) each Lender shall make the
proceeds of its Revolving Credit Loan available to the Swing Line Lender for the
account of the Swing Line Lender at the office of the Swing Line Lender prior to
12:00 noon (New York City time) in funds immediately available on the Business
Day next succeeding the
<PAGE>
25
date such notice is given. The proceeds of such Revolving Credit Loans shall be
immediately applied to repay the Refunded Swing Line Loans.
(c) If prior to the making of a Revolving Credit Loan pursuant to
Section 2.7(b) one of the events described in clause (f) of Section 7 shall have
occurred, each Lender will, on the date such Loan was to have been made,
purchase an undivided participating interest in the Refunded Swing Line Loan in
an amount equal to its Revolving Credit Commitment Percentage of such Refunded
Swing Line Loan. Each Lender will immediately transfer to the Swing Line Lender
in immediately available funds, the amount of its participation and upon receipt
thereof the Swing Line Lender will deliver to such Lender a Swing Line Loan
Participation Certificate dated the date of receipt of such funds and in such
amount.
(d) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's participating interest in a Refunded Swing Line
Loan, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded) in like funds as received; provided, however, that in the event that
such payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Swing Line Lender any portion thereof previously
distributed by the Swing Line Lender to it in like funds as such payment is
required to be returned by the Swing Line Lender.
(e) Each Lender's obligation to purchase participating interests
pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement by the Borrower or any other Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.8. Repayment of Loans, Evidence of Debt.
(a) The Borrower hereby unconditionally agrees to pay to the
Administrative Agent for the account of each Lender (i) the then unpaid
principal amount of each Revolving Credit Loan of such Lender on the Termination
Date, (ii) the principal amount of the A Term Loan of such Lender, in 19
consecutive quarterly installments, payable on the first day of each three-month
period, commencing on May 1, 1996 in the amounts set forth below, (iii) the
principal amount of the B Term Loan of such Lender, in
<PAGE>
26
21 consecutive quarterly installments, payable on the first day of each
three-month period, commencing on November 1, 1996 in the amounts set forth
below, and (iv) in the case of the Swing Line Lender, the then unpaid principal
amount of each Swing Line Loan on the Termination Date (or, in the case of each
clause (i), (ii) and (iii), the then unpaid principal amount of such Loan, on
the date that such Loan becomes due and payable pursuant to Section 7).
A TERM LOAN
-----------
Term Loan
Quarterly Installment Amount
--------------------- ------
1 through 3 $3.125 million
4 through 7 $3.750 million
8 through 11 $5.000 million
12 through 15 $6.250 million
16 through 19 $6.875 million
B TERM LOAN
-----------
Term Loan
Quarterly Installment Amount
--------------------- ------
1 $1.00 million
2 through 5 $0.25 million
6 through 9 $0.25 million
10 through 13 $0.25 million
14 through 17 $0.25 million
18 through 21 $6.25 million
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 2.13.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
<PAGE>
27
(c) The Administrative Agent shall maintain the Register pursuant to
Section 10.6(d), and a subaccount therein for each Lender, in which Register
and/or subaccounts shall be recorded (i) the amount of each Revolving Credit
Loan and Term Loan made hereunder, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower acknowledges that, the Borrower has executed and
delivered to the Lenders (i) a promissory note of the Borrower evidencing the
Revolving Credit Loans of such Lender, substantially in the form of Exhibit A-1
with appropriate insertions as to date and principal amount (as amended,
supplemented or otherwise modified from time to time, a "Revolving Credit
Note"), (ii) in the case of the Swing Line Lender, a promissory note of the
Borrower evidencing the Swing Line Loans of the Swing Line Lender, substantially
in the form of Exhibit A-2 with appropriate insertions as to date and principal
amount (as amended, supplemented or otherwise modified from time to time, the
"Swing Line Note") and/or (iii) a promissory note of the Borrower evidencing the
Term Loan of such Lender, substantially in the form of Exhibit A-3 or Exhibit
A-4, as the case may be, with appropriate insertions as to date and principal
amount (as amended, supplemented or otherwise modified from time to time, a
"Term Note").
2.9. Optional Prepayments. The Borrower may, on the last day of any
Interest Period with respect thereto, in the case of Eurodollar Loans, or at any
time and from time to time, in the case of Base Rate Loans, prepay the Loans, in
whole or in part, without premium or penalty, upon at least three Business Days,
irrevocable notice to the Administrative Agent, or, in the case solely of Swing
Line Loans, upon notice by 12:00 noon, New York City time on the same Business
Day to the Swing Line Lender, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, Base Rate Loans or a combination
thereof, and whether of Revolving Credit Loans (and Swing Line Loans, if any),
Term Loans, or a combination thereof, and, if of a combination of any thereof,
the amount allocable to each. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. If any such notice
<PAGE>
28
is given, the amount specified in such notice shall be due and payable on the
date specified therein, together with any amounts payable pursuant to Sections
2.20 and 2.21 and, in the case of prepayments of the Term Loans only, accrued
interest to such date on the amount prepaid. Partial prepayments of the Term
Loans shall be applied to the installments of principal thereof (pro rata
according to the outstanding principal amounts thereof held by the respective
Lenders), in the inverse order of their scheduled maturities. Amounts prepaid on
account of the Term Loans may not be reborrowed. Prepayments of Revolving Credit
Loans and Swing Line Loans shall be applied first to all outstanding Swing Line
Loans and second to Revolving Credit Loans. Partial prepayments of Revolving
Credit Loans or Term Loans under this Section 2.9 shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof; partial prepayments
of Swing Line Loans shall be in an aggregate principal amount of $500,000 or a
whole multiple of $100,000 in excess thereof.
2.10. Mandatory Prepayments.
(a) If, subsequent to the receipt of proceeds from the IPO, the
Parent or any Subsidiary shall issue and sell any Capital Stock, 100% of the Net
Proceeds thereof shall be promptly applied toward the prepayment of the Loans
and reduction of the Commitment as set forth in Section 2.10(d).
(b) If, subsequent to the Closing Date, the Borrower or any of its
Subsidiaries shall receive Net Proceeds from any Asset Sale (other than in
accordance with Section 6.6(b) and other than Net Proceeds to the extent
excluded by the provisions of Section 6.6(e)(iii)), 100% of such Net Proceeds
shall be promptly applied toward the prepayment of the Loans and reduction of
the Commitments as set forth in Section 2.10(d); provided that up to $500,000 of
Net Proceeds from all such Asset Sales in the aggregate need not be applied to
the prepayment of the Loans and the reduction of the Commitments.
(c) If for any fiscal year, commencing with the fiscal year in which
the Closing Date occurs, there shall be Excess Cash Flow for such fiscal year,
75% of such Excess Cash Flow shall be applied toward prepayment of the Loans and
reduction of the Commitments as set forth in Section 2.10(d). Each such
prepayment shall be made on or before the date on which the financial statements
referred to in Section 5.1(a) in respect of such fiscal year are delivered, but
in no event later than the date by which such statements are required to be
delivered pursuant to such subsection.
(d) Prepayments made pursuant to this Section 2.10 shall be applied
by the Borrower, subject to the second succeeding sentence, first, to the
prepayment of the Term Loans (pro rata according to the outstanding principal
amounts thereof held by the respective Lenders) and, second, to reduce
permanently the Revolving Credit Commitments (pro rata according to the amounts
of the Revolving Credit Commitments of the respective Lenders); provided,
however, that each holder of the B
<PAGE>
29
Term Loan shall have the right, upon not less than five days prior written
notice to the Administrative Agent, to waive application of such prepayments in
partial satisfaction of the B Term Loans held by such Lender in which case such
prepayments shall be applied first, to prepayment of the A Term Loans held by
such Lender and second, to the prepayment of the B Term Loan held by such
Lender. Any such reduction of the Revolving Credit Commitments shall be
accompanied by prepayment of first, Swing Line Loans and second, Revolving
Credit Loans to the extent, if any, that the sum of the aggregate outstanding
principal amount of Revolving Credit Loans and Swing Line Loans exceeds the
amount of the aggregate Revolving Credit Commitments as so reduced. Prepayments
of the Term Loans pursuant to this Section 2.10 shall be applied to the
remaining installments of each Term Loan in the inverse order of their scheduled
maturities. Amounts prepaid on account of the Term Loans may not be reborrowed.
(e) The Borrower shall give the Administrative Agent (which shall
promptly notify each Lender) at least one Business Day's notice of each
prepayment or mandatory reduction pursuant to this Section 2.10 setting forth
the date and amount thereof. Any prepayment of Term Loans or Revolving Credit
Loans pursuant to this Section 2.10 shall be applied, first, to any such Base
Rate Loans then outstanding and the balance of such prepayment, if any, to any
such Eurodollar Loans then outstanding; provided that prepayments of Eurodollar
Loans, if not on the last day of the Interest Period with respect thereto,
shall, at the Borrower's option, be prepaid subject to the provisions of
Sections 2.20 and 2.21 or the amount of such prepayment (after application to
any Base Rate Loans) shall be deposited with the Administrative Agent as cash
collateral for the Loans on terms reasonably satisfactory to the Administrative
Agent and thereafter shall be applied in the order of the Interest Periods next
ending most closely to the date such prepayment is required to be made and on
the last day of each such Interest Period. After such application, unless an
Event of Default shall have occurred and be continuing, any remaining interest
earned on such cash collateral shall be paid to the Borrower.
2.11. Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to Base Rate Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto. The Borrower may elect from time to time after the
date which is seven days after the Closing Date to convert Base Rate Loans
(other than Swing Line Loans) to Eurodollar Loans by giving the Administrative
Agent at least three Business Days' prior irrevocable notice of such election.
Any such notice of conversion to Eurodollar Loans shall specify the length of
the initial Interest Period or Interest Periods therefor. Upon receipt of any
such notice the Administrative Agent shall promptly notify each Lender thereof.
All or any part of outstanding Eurodollar Loans and Base Rate Loans (other than
Swing Line Loans)
<PAGE>
30
may be converted as provided herein, provided that (i) no Loan may be converted
into a Eurodollar Loan when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have determined that
such a conversion is not appropriate and (ii) no Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Termination Date
(in the case of conversions of Revolving Credit Loans) or the date of the final
installment of principal of the Term Loans.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Administrative Agent, in accordance with the applicable provisions
of the term "Interest Period" set forth in Section 1.1, of the length of the
next Interest Period to be applicable to such Loans, provided that no Eurodollar
Loan may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date (in the case of continuations of
Revolving Credit Loans) or the date of the final installment of principal of the
Term Loans and provided, further, that if the Borrower shall fail to give such
notice or if such continuation is not permitted such Loans shall be
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period.
2.12. Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or
a whole multiple of $1,000,000 in excess thereof. In no event shall there be
more than nine Eurodollar Tranches outstanding at any time.
2.13. Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this
<PAGE>
31
Section plus 2% or (y) in the case of any such overdue interest, the Revolving
Credit Commitment Fee, or any other fee or other amount, the rate described in
Section 2.13(b) plus 2%, in each case from the date of such non-payment until
such overdue principal, interest, commitment fee or other amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to Section 2.13(c) shall be
payable from time to time on demand.
2.14. Computation of Interest and Fees.
(a) The Revolving Credit Commitment Fee and, whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest shall be calculated on the basis of a 360-day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.13(a).
2.15. Inability to Determine Interest Rate. If prior to the first day of
any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
<PAGE>
32
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be converted to or continued as Base Rate Loans and (z) any outstanding
Eurodollar Loans shall be converted, on the first day of such Interest Period,
to Base Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Loans to Eurodollar Loans.
2.16. Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder (other
than Swing Line Loans, each payment by the Borrower on account of the Revolving
Credit Commitment Fee or any other commitment fee hereunder and any reduction of
the Commitments of the Lenders shall be made pro rata according to the
respective Commitment Percentages of the Lenders. Each optional prepayment by
the Borrower of the Revolving Credit Loans or the Term Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Credit Loans or the Term Loans, as the case may be, then held by the respective
Lenders. Each payment (other than optional prepayments) by or on behalf of the
Borrower (including any application of proceeds of Collateral) on account of the
principal of or interest on the Loans shall be made pro rata according to the
respective amounts of such principal or interest then due and owing. All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 12:00 noon, New York City
time, on the due date thereof to the Administrative Agent, for the account of
the Lenders, at the Administrative Agent's office specified in Section 10.2, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand,
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33
such amount with interest thereon at a rate equal to the daily average Federal
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's Commitment Percentage of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the Borrower.
2.17. Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Sections 2.20 and 2.21.
2.18. Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.19 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
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34
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.19. Taxes.
(a) All payments made by the Borrower under this Agreement and any
Notes shall be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such
<PAGE>
35
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Note). If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings ("Non-Excluded Taxes")
are required to be withheld from any amounts payable to the Administrative Agent
or any Lender hereunder or under any Note, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of Section
2.19(b). Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated or organized under the laws
of the United States of America, any state thereof or the District of Columbia
shall:
(i) deliver to the Borrower and the Administrative Agent on or
before the date on which it becomes a Lender either (A) two properly
completed and duly executed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form, as the case may
be) claiming complete exemption from United States withholding tax with
respect to payments by the Borrower under this Agreement or (B) in the
case of a Lender claiming exemption from United States withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest" by the Borrowers under this Agreement, a properly
completed and duly executed United States Internal Revenue Service Form
W-8 (or successor applicable form, as the case may be) and an annual
certificate representing that such Lender is not a bank for purposes of
Section 881(c) of the Code, is not subject to regulatory or other legal
requirements as a bank in any jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law or other filing or submission
made to any Governmental Authority, any application made to a rating
<PAGE>
36
agency or qualification for any exemption from tax, securities law or
other legal requirements, is not a 10% shareholder of the Borrower within
the meaning of Section 881(c)(3)(B) of the Code and is not a controlled
foreign corporation receiving interest from a related person within the
meaning of Section 881(c)(3)(C) of the Code;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Administrative Agent;
provided, however, that such Lender shall not be required to perform the
obligations under this Section 2.19(b) if an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent.
2.20. Indemnity. The Borrower agrees to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Borrower has given
a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment or payment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Bank on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank Eurodollar market.
<PAGE>
37
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.21. Fees. The Borrower hereby agrees to pay to the Administrative Agent
such fees on such dates as may from time to time be specified by such parties in
writing.
2.22. Letters of Credit.
(a) The Issuing Lender will, from time to time until the Termination
Date, upon receipt of duly executed Applications and such other documents,
instruments and/or agreements as the Issuing Lender may require, issue or amend
Letters of Credit on such terms as are satisfactory to the Issuing Lender,
provided, however that the Issuing Lender shall not issue any Letter of Credit
(A) at any time if, after giving effect to such Letter of Credit, the Letter of
Credit Obligations would exceed the lesser of (i) $2,000,000 or (ii) the maximum
amount of Commitments (other than for Term Loans) minus the sum (x) of the
Letter of Credit Obligations plus (y) the outstanding principal balance of the
Revolving Credit Loans, and (B) with an expiry date (i) more than one year from
its issuance or (ii) subsequent to a date 30 days prior to the Termination Date.
(b) The Borrower agrees to reimburse the Administrative Agent for
the account of the Issuing Lender, on demand, for each such payment made by the
Issuing Lender under or pursuant to any Letter of Credit or L/C Draft. The
Borrower further agrees to pay to the Administrative Agent for the account of
the Issuing Lender, on demand, interest at the rate set forth in Section 2.13(c)
applicable to Base Rate Loans on any amount paid by the Issuing Lender under or
pursuant to any Letter of Credit or L/C Draft from the date of payment until the
date of reimbursement to the Issuing Lender.
(c) The Borrower's obligation to reimburse the Administrative Agent
for the account of the Issuing Lender for payments and disbursements made by the
Issuing Lender under any Letter of Credit shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against the Issuing
Lender (or any other Lender), including, without limitation, any defense based
on the failure of the demand for payment under such Letter of Credit to conform
to the terms of such Letter of Credit, the legality, validity, regularity or
enforceability of such Letter of Credit, or the identity of the transferee of
such Letter of Credit or the sufficiency of any transfer if such Letter of
Credit is transferable; provided, however, that the Borrower shall not be
obligated to reimburse the Administrative Agent for the account of the Issuing
Lender for any wrongful payment or disbursement made under any Letter of Credit
as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuing Lender or any of its officers, employees
or agents.
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38
(d) Notwithstanding anything to the contrary herein or in any
Application, upon the occurrence of an Event of Default, an amount equal to the
aggregate amount of the outstanding Letter of Credit Obligations shall, at the
Issuing Lender's option and without demand upon or further notice to the
Borrower, be deemed (as between the Issuing Lender and the Borrower) to have
been paid or disbursed by the Issuing Lender under the Letters of Credit issued
and L/C Drafts accepted by the Issuing Lender (notwithstanding that such amounts
may not in fact have been so paid or disbursed), and a Revolving Loan to
Borrower in the amount of such Letter of Credit Obligations to have been made
and accepted, which Loan shall be immediately due and payable.
(e) With respect to each Letter of Credit, each Lender (other than
the Issuing Lender) hereby irrevocably and unconditionally agrees that it shall
be deemed to have purchased and received from the Issuing Lender, without
recourse or warranty an undivided interest in such Letter of Credit, effective
simultaneously with the issuance thereof, in an amount equal to such Lender's
Revolving Credit Commitment Percentage of such Letter of Credit. For the
purposes of this Agreement, the proportionate interest which the Issuing Lender
retains in each Letter of Credit shall be referred to as its "participation" in
such Letter of Credit.
(f) If the Issuing Lender shall fail to be reimbursed pursuant to
subsection (b) above by the Borrower for any payment or disbursement under a
Letter of Credit or L/C Draft, each other Lender shall, promptly upon request of
the Issuing Lender, provide the Administrative Agent with immediately available
funds for the account of the Issuing Lender in an amount equal to such Lender's
Commitment Percentage of such payment or disbursement. If the Administrative
Agent or the Issuing Lender subsequently receives from the Borrower any
reimbursement of such payment or disbursement, the Administrative Agent or the
Issuing Lender, as the case may be, shall promptly remit to each Lender its
Commitment Percentage of such reimbursement. All interest payments received by
the Issuing Lender or the Administrative Agent on account of reimbursements
under this Agreement shall be promptly distributed by the Issuing Lender or the
Administrative Agent, as the case may be, to the other Lenders pro rata
according to their respective Commitment Percentages (except to the extent that
the Issuing Lender was not promptly reimbursed by any such Lender).
(g) The obligation of each Lender to provide the Administrative
Agent with such Lender's pro rata share of the amount of any payment or
disbursement made by the Issuing Lender under any outstanding Letter of Credit
or L/C Draft shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which such
Lender may have or have had against the Issuing Lender (or any other Lender),
including, without limitation, any defense based on the failure of the demand
for payment under such Letter of Credit to conform to the terms of such Letter
of Credit, the legality, validity, regularity or enforceability of such Letter
of
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39
Credit, or the identity of the transferee of such Letter of Credit or the
sufficiency of any transfer if such Letter of Credit is transferable; provided,
however, that the Lenders shall not be obligated to reimburse the Issuing Lender
for any wrongful payment or disbursement made under any Letter of Credit as a
result of acts or omissions constituting gross negligence or willful misconduct
on the part of the Issuing Lender or any of its officers, employees or agents.
(h) In determining whether to make any payment under or pursuant to
any Letter of Credit or any related L/C Draft, the Issuing Lender shall have no
obligation to the Borrower, any Lender or any other Person other than to confirm
that any documents required to be delivered have been delivered and that such
documents comply on their face with the requirements of such Letter of Credit.
No action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or L/C Draft, if taken or omitted in the absence of gross
negligence or willful misconduct, shall put the Issuing Lender under any
resulting liability to the Borrower or any Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, and to induce the Issuing Lender to issue
Letters of Credit, the Borrower hereby remakes all of the representations
contained in the Original Credit Agreement (and nothing contained herein shall
affect or diminish such representations made prior to the date hereof), and the
Borrower hereby represents and warrants to the Administrative Agent, the Issuing
Lender and each Lender that:
3.1. Financial Condition.
The consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at December 31, 1995 and the related consolidated statements of
income and of cash flows for the period from November 6, 1995 to December 31,
1995, reported on by Grant Thornton LLP and certified by the chief financial
officer of the Borrower, copies of which have heretofore been furnished to each
Lender, are complete and correct and present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal year then ended. The unaudited consolidated statement of income
of the Borrower and its consolidated Subsidiaries as at August 31, 1996,
certified by the chief financial officer of the Borrower, a copy of which has
heretofore been furnished to each Lender, is complete and correct and presents
fairly the consolidated results of operations of the Borrower and its
consolidated Subsidiaries as at such date (subject to normal year-end audit
adjustments). The consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at November 6, 1995, reported on by Coopers &
Lybrand LLP and certified by the chief financial officer of the Borrower, a
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40
copy of which has heretofore been furnished to each Lender, is complete and
correct and presents fairly the consolidated financial condition of the Borrower
and the consolidated Subsidiaries as at such date. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or chief financial officer, as
the case may be, and as disclosed therein). Except as set forth on Schedule 3.1,
neither the Borrower nor any of its consolidated Subsidiaries had, at the date
of the most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto. During the period
from April 9, 1996 to and including the date hereof there has been no sale,
transfer or other disposition by the Borrower or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its consolidated Subsidiaries at April 9, 1996, other than
the sale of inventory in the ordinary course of business.
3.2. No Change. Since April 9, 1996, there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect.
3.3. Corporate Existence; Compliance with Law. Each Loan Party (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4. Corporate Power; Authorization; Enforceable Obligations. Each Loan
Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents. This
Agreement has been, and each other Loan Document to which it is a party will be,
duly executed and delivered
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41
on behalf of each Loan Party that is a party hereto or thereto. This Agreement
constitutes, and each other Loan Document to which it is a party when executed
and delivered will constitute, a legal, valid and binding obligation of each
Loan Party that is a party hereto or thereto enforceable against such Loan Party
in accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
3.5. No Legal Bar. The execution, delivery and performance of the Loan
Documents, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or Contractual Obligation of any Loan Party or of
any of its Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation.
3.6. No Material Litigation. Except as set forth on Schedule 3.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Loan Parties,
threatened by or against any Loan Party or any of its Subsidiaries or against
any of its or their respective properties or revenues (a) with respect to any of
the Loan Documents or any of the transactions contemplated hereby or thereby, or
(b) which could reasonably be expected to have a Material Adverse Effect.
3.7. No Default. No Loan Party or any of its Subsidiaries is in default
under or with respect to any of its Contractual Obligations in any respect which
could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
3.8. Ownership of Property; Liens. Each of the Loan Parties and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except as permitted by Section 6.3. With respect to real
property or interests in real property, as of the Closing Date, the Borrower has
(i) fee title to all of the real property listed on Schedule 3.8 under the
heading "Fee Properties" (each, a "Fee Property"), and (ii) good and valid title
to the leasehold estates in all of the real property leased by it and listed on
Schedule 3.8 under the heading "Leased Properties" (each, a "Leased Property"),
in each case free and clear of all mortgages, liens, security interests,
easements, covenants, rights-of-way and other similar restrictions of any nature
whatsoever, except (A) Liens permitted pursuant to Section 6.3, (B) as to Leased
Property, the terms and provisions of the respective lease therefor and any
matters affecting the fee title and any estate superior to the leasehold estate
related thereto,
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42
and (C) title defects, or leases or subleases granted to others, which are not
material to the Fee Properties or the Leased Properties, as the case may be,
taken as a whole. The Fee Properties and the Leased Properties constitute, as of
the Closing Date, all of the real property owned in fee or leased by the
Borrower and its Subsidiaries.
3.9. Intellectual Property. Each Loan Party and each of its Subsidiaries
owns, or is licensed to use or otherwise has the right to use, all trademarks,
tradenames, copyrights, patents, trade secrets and other proprietary information
that it uses in the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). To the knowledge
of each Loan Party, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or enforceability of any such Intellectual Property, nor does any Loan
Party know of any valid basis for any such claim. The use of such Intellectual
Property by each Loan Party and its Subsidiaries does not infringe on the rights
of any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
3.10. No Burdensome Restrictions. No Contractual Obligation of any Loan
Party or any of its Subsidiaries could reasonably be expected to have a Material
Adverse Effect.
3.11. Taxes. Each Loan Party and each of its Subsidiaries has filed or
caused to be filed all material tax returns which, to the knowledge of the Loan
Parties, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any amount or the validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of such Loan Party or its Subsidiaries, as the case may be); no tax Lien
has been filed, and, to the knowledge of the Loan Parties, no claim is being
asserted, with respect to any such tax, fee or other charge.
3.12. Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form G-1 or FR
Form U-1 referred to in said Regulation G or Regulation U, as the case may be.
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43
3.13. ERISA. Except as set forth in Schedule 3.13, neither a Reportable
Event nor an "accumulated funding deficiency" (within the meaning of Section 412
of the Code or Section 302 of ERISA) has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period. The present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by more than $3 million. Neither
the Borrower nor any Commonly Controlled Entity has any liability in respect of
any Multiemployer Plan.
3.14. Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any federal or state statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
3.15. Subsidiaries. After giving effect to the Acquisition: (a) the only
Subsidiary of the Parent is the Borrower; and (b) the only Subsidiaries of the
Borrower are Martin Brothers International Inc., King Edward Technologies, Inc.,
Swisher International, Ltd. (a Subsidiary of Martin Brothers International,
Inc.) and Swisher International Finance Company, of which only Swisher
International, Ltd. is a Foreign Subsidiary.
3.16. Purpose of Loans. The proceeds of the A Term Loan have been used by
the Borrower to refinance a portion of the Existing Indebtedness, the proceeds
of the B Term Loan and the Revolving Credit Loans have been and shall be used by
the Borrower to satisfy the indebtedness outstanding under the Seller Note, to
repurchase the AMPCo Equity Interest, to refinance a portion of the Existing
Indebtedness and for general corporate purposes. The proceeds of the Swing Line
Loans have been and shall be used to finance the working capital needs of the
Borrower and its Subsidiaries in the ordinary course of business and for other
general corporate purposes of the Borrower.
3.17. Environmental Matters. Except to the extent that all of the
following, taken together, could not reasonably be expected to result in a
Material Adverse Effect or to result in the payment of Material Environmental
Amount:
(a) The facilities and properties owned, leased or operated by each
Loan Party or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in amounts
or
<PAGE>
44
concentrations which (i) constitute or constituted a violation of, or (ii) could
reasonably be expected to give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by any Loan Party or any of
its Subsidiaries (the "Business") which could materially interfere with the
continued operation of the Properties or materially impair the fair salable
value thereof.
(c) Neither any Loan Party nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does any Loan Party have knowledge or reason to believe that any such notice
will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
or elsewhere in violation of, or in a manner that could reasonably be expected
to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Loan Parties, threatened, under any
Environmental Law to which any Loan Party or any Subsidiary thereof is or will
be named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of any Loan Party or any Subsidiary thereof in connection with
the Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under
Environmental Laws.
3.18. Solvency. Each Loan Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith and therewith, will be and will continue to be, Solvent.
<PAGE>
45
3.19. Security Documents.
(a) Each Pledge Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral (as such term is defined in such
Pledge Agreement) and proceeds thereof and, after satisfaction of the conditions
specified in Section 4.1(z), such Pledge Agreement shall at all times constitute
a fully perfected first priority Lien on, and security interest in, all right,
title and interest of the Pledgors in such Collateral and the proceeds thereof,
as security for the Secured Obligations (as such terms are defined in such
Pledge Agreement), in each case prior and superior in right to any other Person.
(b) Each Security Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described, and as defined,
therein and proceeds thereof, and, after financing statements in appropriate
form are filed in the offices specified on Schedule 4 to such Security
Agreement, each Security Agreement shall at all times constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for
the Secured Obligations (as defined in such Security Agreement), in each case
prior and superior in right to any other Person, other than with respect to
Liens expressly permitted by Section 6.3.
(c) Each Mortgage is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the collateral described therein, and upon
filing the Mortgages in the jurisdictions listed on Schedule 3.19(c), such
security interests will constitute perfected liens on, and security interests
in, all right, title and interest of the debtor party thereto in the collateral
described therein.
3.20. Regulation H. No Mortgage encumbers improved real property (other
than the Wheeling, West Virginia property) which is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968.
3.21. Accuracy of Information. No statement or information contained in
this Agreement, any other Loan Document or any other document, certificate or
statement furnished in writing to the Administrative Agent, the Arranger or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished any untrue statement of any fact material to the
interests of the Administrative Agent or any Lender, or omitted to state a fact
necessary in order to make the statements contained herein or therein not
<PAGE>
46
misleading in any respect material to the interests of the Administrative Agent
or any Lender. There is no fact known to any Loan Party that could reasonably be
expected to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents or in such other documents, certificates and
statements furnished to the Administrative Agent, the Arranger and the Lenders
for use in connection with the transactions contemplated hereby and by the other
Loan Documents.
SECTION 4. CONDITIONS PRECEDENT
4.1. Conditions to Initial Loans. The agreement of each Lender to continue
to make the Revolving Loans requested to be made by it is subject to the
satisfaction, immediately prior to or concurrently with the making of such Loans
on the Closing Date, of the conditions precedent set forth below:
(a) Loan Documents. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of each of
the Parent and the Borrower, with a counterpart for each Lender.
(b) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of such other documents or instruments as may be
reasonably requested by the Administrative Agent, including, without limitation,
a copy of any debt instrument, security agreement or other material contract to
which any Loan Party may be a party.
(c) Borrowing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of the Borrower, dated the
Closing Date, substantially in the form of Exhibit F with appropriate insertions
and attachments, satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower.
(d) Borrower Incumbency Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a Certificate of the
Borrower, dated the Closing Date, as to the incumbency and signature of the
officers of the Borrower executing any Loan Document satisfactory in form and
substance to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Borrower.
(e) Parent Incumbency Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, a certificate of the Parent,
dated the Closing Date, as to the incumbency and signature of the officers of
the Parent executing any Loan Document satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Parent.
<PAGE>
47
(f) Subsidiary Incumbency Certificates. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of each
Subsidiary of the Borrower which is a Loan Party, dated the Closing Date, as to
the incumbency and signature of the officers of such Subsidiaries executing any
Loan Document, satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of each such Subsidiary.
(g) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the Secretary or
an Assistant Secretary of each Loan Party, certified as of the Closing Date,
certifying that there have been no changes to the certificate of incorporation
and by-laws of such Loan Party delivered to the Lenders on the Original Closing
Date other than changes to the Parent's certificate of incorporation and by-laws
related to the recapitalization of the Parent and the IPO.
(h) Fees. The Documentation Agent, Administrative Agent and the
Lenders shall have received all invoiced fees and expenses required to be paid
on the Closing Date in connection with this Agreement and all accrued fees,
expenses and interest under the Existing Credit Agreement as of the Closing
Date.
(i) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of Schnader,
Harrison, Segal & Lewis, counsel to the Borrower and the other Loan Parties,
substantially in the form of Exhibit G, each such legal opinion to cover such
other matters incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(j) Third-Party Consents. All governmental and third party approvals
(including landlords' and other consents) necessary or advisable in connection
with the making of the initial Loans and the continuing operations of the
Borrower and its Subsidiaries shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired without any action
being taken or threatened by any competent authority which would restrain,
prevent or otherwise impose materially adverse conditions on the making of the
initial Loans.
(k) Solvency Certificate. The Administrative Agent shall have
received the executed Solvency Certificate, with a counterpart for each Lender.
(l) Amendment, Affirmation and Consent. The Administrative Agent
shall have received a copy of the Amendment, Affirmation and Consent, whereby
the Parent, the Borrower and the Domestic Subsidiaries of the Borrower shall
reaffirm and
<PAGE>
48
restate their obligations under the Notes, the Loan Documents and all other
agreements executed in connection therewith.
4.2. Conditions to Each Loan or Letters of Credit. The agreement of each
Lender to make any Loan requested to be made by it on any date (including,
without limitation, its initial Loan), or the agreement of the Issuing Lender to
issue a Letter of Credit, is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by each Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such date as if made on
and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Each of the Parent and the Borrower hereby agrees that, so long as
the Commitments remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, it shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
5.1. Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Parent, copies of the consolidated and
consolidating balance sheets of the Parent and its consolidated Subsidiaries as
at the end of such year and the related consolidated and consolidating
statements of income and retained earnings and of cash flows for such year,
setting forth in each case in comparative form the figures for the
<PAGE>
49
previous year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by Grant
Thornton LLP or other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Parent, the unaudited consolidated and consolidating balance sheets of
the Parent and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated and consolidating statements of income and
retained earnings and of cash flows of the Parent and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures for
the previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event not later than 25 days
after the end of each calendar month, the financial information provided to the
board of directors in anticipation of monthly meetings thereof, substantially in
the format, and containing substantially similar calculations, as that provided
on September 30, 1995, certified by a Responsible Officer as being fairly stated
in all material respects (subject to normal year-end audit adjustments); all
such financial statements shall be complete and correct in all material respects
and shall be prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein and except that interim statements may exclude detailed
footnote disclosure in accordance with standard practice).
5.2. Certificates; Other Information. Furnish to each Lender
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) and 5.1(b), a certificate of a Responsible Officer
(i) stating that, to the best of such officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to be observed, performed or satisfied by it, and that such
officer has obtained no knowledge of any Default or Event of Default except as
specified in such certificate; and (ii) in the case of financial statements
referred to in Section 5.1(a) and 5.1(b), including calculations and
<PAGE>
50
information demonstrating in reasonable detail compliance with the requirements
of Section 6.1;
(c) not later than 30 days following the end of each fiscal year of
the Parent, a copy of the projections by the Parent of the operating budget and
cash flow budget of the Parent and its Subsidiaries for the succeeding fiscal
year, such projections to be accompanied by a certificate of a Responsible
Officer to the effect that such projections have been prepared on the basis of
sound financial planning practice and that such officer has no reason to believe
they are incorrect or misleading in any material respect;
(d) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) and 5.1(b), a management narrative report
explaining all significant variances from forecasts, projections and previous
results and all significant current developments in staffing, marketing, sales
and operations; and
(e) promptly after the same are available, copies of all proxy
statements, financial statements and reports as the Parent shall send to its
stockholders or as the Parent may file with the Securities and Exchange
Commission or any governmental authority at any time having jurisdiction over
the Parent or its Subsidiaries; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower or its Subsidiaries, as the case may be.
5.4. Maintenance of Existence. Preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct
of its business except as otherwise permitted pursuant to Section 6.5; comply
with all Contractual Obligations and Requirements of Law except to the extent
that failure to comply therewith could not, in the aggregate, be reasonably
expected to have a Material Adverse Effect.
5.5. Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area
<PAGE>
51
by companies engaged in the same or a similar business; and furnish to each
Lender, upon written request, full information as to the insurance carried.
5.6. Inspection of Property; Books and Records: Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and, upon prior
written notice, permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Parent and its Subsidiaries with officers and employees of the Parent and its
Subsidiaries and with its independent certified public accountants.
5.7. Notices. Promptly give notice to the Administrative Agent (who shall
promptly notify each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Parent or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Parent or
any of its Subsidiaries and any Governmental Authority, which in either case, if
not cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding (including without limitation any
notice of violation, alleged violation, liability or potential liability under
any Environmental Law) affecting the Parent or any of its Subsidiaries in which
the amount involved is $500,000 or more and not covered by insurance or in which
injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after any Loan Party knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;
and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
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52
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.8. Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all respects with and maintain, and ensure that all tenants and
subtenants obtain and comply in all respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except to the extent that any failures could not,
in the aggregate, be expected to have a Material Adverse Effect or to result in
the payment of Material Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
5.9. Additional Subsidiaries. (a) With respect to any Subsidiary of the
Borrower created or acquired after the Closing Date by the Borrower, promptly
(i) execute and deliver, or cause to be executed and delivered, to the
Administrative Agent a pledge agreement or supplement to a Stock Pledge
Agreement, in form, scope and substance satisfactory to the Administrative
Agent, granting to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in the Capital Stock of such
Subsidiary, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, executed in
blank, (iii) execute and deliver, or cause to be executed and delivered, to the
Administrative Agent a pledge agreement or supplement to the Subsidiaries Note
Pledge Agreement, in form, scope and substance satisfactory to the
Administrative Agent, granting to the Administrative Agent, for the benefit of
the Lenders, a perfected first priority security interest in the notes held by
such Subsidiary, (iv) deliver to the Administrative Agent the certificates
representing such notes, endorsed in blank, (v) cause such Subsidiary to execute
and deliver a guarantee or a supplement to the Subsidiaries Guarantee (which
guarantee shall be senior to all other Indebtedness of such guarantor), in form
and substance satisfactory to the Administrative Agent, in respect to all
obligations of the Borrower hereunder and under the other Loan Documents, (vi)
cause such Subsidiary to execute and deliver a security agreement or supplement
to the Subsidiaries Security Agreement, in form and substance satisfactory to
the Administrative Agent, securing such Subsidiary's obligations under such
guarantee and covering the types of assets covered by the Subsidiaries Security
Agreement, (vii) to the
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53
extent required by Section 5.10(a), cause such Subsidiary to execute and deliver
one or more Mortgages, in form and substance satisfactory to the Administrative
Agent, securing such Subsidiary's obligations under such guarantee, and any
other documents required under such subsection, (viii) execute and deliver such
amendments to this Agreement requested by the Administrative Agent to reflect
the existence of such Subsidiary, including, without limitation, amendments to
Sections 3, 5, 6 and 7 to include such Subsidiary in the covenants,
representations and warranties and agreements contained therein and (ix) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described in the preceding clauses (i), (ii),
(iii), (iv), (v) and (vi) which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(b) The Borrower agrees to deliver to the Administrative Agent, no
later than 15 days after the date hereof, all of the instruments set forth in
subsection (a) above with respect to King Edward Technologies, Inc., and such
other agreements as the Administrative Agent deems reasonably necessary.
5.10. After-Acquired Property.
(a) Upon the acquisition by the Borrower or any of its Subsidiaries
of any fee or leasehold interest in real property for consideration in excess of
$500,000, or of any Subsidiary holding any such interest, deliver to the
Administrative Agent one or more Mortgages granting the Administrative Agent a
first priority security interest in such real property and/or leaseholds,
together with (i) legal opinions in form and substance satisfactory to the
Administrative Agent and covering the matters covered, with respect to the
Mortgages delivered on the Closing Date, by the opinions delivered pursuant to
Section 4.1(q)(ii) and (ii) the documents which would be required under Section
4.1(cc), 4.1(dd), 4.1(ee) and 4.1(ff), as appropriate, if such Mortgage were to
have been delivered at the Closing Date.
(b) Grant in favor of the Administrative Agent, for the benefit of
the Lenders, Liens on any other assets hereafter acquired and on previously
encumbered assets which become unencumbered, to the extent such Liens are then
permissible under applicable law and pursuant to any agreements to which the
Borrower or its Subsidiaries are a party, at any time that the aggregate fair
market value of such assets exceeds $500,000, pursuant to documentation in form
and substance satisfactory to the Administrative Agent.
5.11. Foreign Subsidiary. At or within two months after the Closing Date,
cause the Borrower and the Foreign Subsidiary to execute and deliver to the
Administrative Agent, in form and substance satisfactory to the Administrative
Agent, such documents and instruments (including, without limitation, pledge
agreements) and take such action
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54
(including, without limitation, the delivery of stock certificates and
instruments) as the Administrative Agent may reasonably request in order to
grant to the Administrative Agent, for the ratable benefit of the Lenders, as
collateral security for the Borrower's obligations hereunder, a first priority
perfected security interest in 65% of the Capital Stock of, or equivalent
ownership interests in, the Foreign Subsidiary, along with any warrants,
options, or other rights to acquire the same, in all cases to the extent legally
permissible and practicable.
5.12. Interest Rate Protection. Maintain through June 12, 1999, interest
rate protection for at least 50% of the principal amount of the B Term Loan, on
a weighted average basis taking into account scheduled amortization payments, on
terms and conditions reasonably satisfactory to the Lenders.
SECTION 6. NEGATIVE COVENANTS
Each of the Parent and the Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender, the Issuing
Lender, the Documentation Agent or the Administrative Agent hereunder or under
any other Loan Document, it shall not, and (except with respect to Section 6.1)
shall not permit any of its Subsidiaries to, directly or indirectly:
6.1. Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Net Worth at the last day of
any fiscal quarter set forth below to be less than the amount set forth opposite
such fiscal quarter below, except that if the Seller Purchase Amount is less
than $40 million, the Net Worth which the Borrower shall be required to maintain
at the last day of any fiscal quarter set forth below (through the 2nd quarter
1997) shall be increased by the Net Worth Increase Amount (but, subsequent to
the B Term Loan Draw Date, the Net Worth which the Borrower shall be required to
maintain shall not be greater than $29.5 million through the 3rd quarter 1996
and $37.0 million for the 4th quarter 1996 through the 3rd quarter 1997):
Fiscal Quarter Amount
-------------- ------
3rd quarter 1996 $25.0 million
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55
4th quarter 1996 to $30.0 million
1st quarter 1997
2nd quarter 1997 $35.0 million
3rd quarter 1997 $37.0 million
4th quarter 1997 to $52.0 million
3rd quarter 1998
4th quarter 1998 to $77.0 million
3rd quarter 1999
4th quarter 1999 to $107.0 million
3rd quarter 2000
4th quarter 2000 $137.0 million
and thereafter
(b) Fixed Charge Coverage. Permit for any period of four consecutive
fiscal quarters (or, if fewer than four full fiscal quarters have elapsed since
the Original Closing Date, the period since the Original Closing Date) ending on
the last day of any fiscal quarter set forth below the ratio of (i) Cash Flow
for such period to (ii) Fixed Charges for such period to be less than the ratio
set forth opposite such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
3rd quarter 1996 to 1.25 to 1
2nd quarter 1997
3rd quarter 1997 to 1.30 to 1
2nd quarter 1998
3rd quarter 1998 to 1.30 to 1
2nd quarter 1999
3rd quarter 1999 to 1.33 to 1
2nd quarter 2000
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56
3rd quarter 2000 1.50 to 1
and thereafter
(a) Maintenance of Indebtedness to EBITDA Ratio. Permit the ratio of
(i) Indebtedness of the Borrower and its Subsidiaries at the last day of any
fiscal quarter set forth below to (ii) EBITDA for the four fiscal quarters most
recently ended prior to such date, to be greater than the amount set forth
opposite such fiscal quarter below:
Fiscal Quarter Ratio
-------------- -----
3rd quarter 1996 3.50 to 1
4th quarter 1996 to 2.75 to 1
1st quarter 1997
2nd quarter 1997 to 2.50 to 1
3rd quarter 1997
4th quarter 1997 to 2.25 to 1
2nd quarter 1998
3rd quarter 1998 to 1.50 to 1
2nd quarter 1999
3rd quarter 1999 to 1.00 to 1
2nd quarter 2000
3rd quarter 2000 0.75 to 1
and thereafter
6.2. Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower to any Domestic Subsidiary of the
Borrower and of any Subsidiary to the Borrower or any other Domestic Subsidiary
of the Borrower; and
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57
(c) additional Indebtedness of the Borrower not exceeding $3,500,000
in aggregate principal amount at any one time outstanding; provided that no more
than $2,000,000 in aggregate principal and/or face amount shall be incurred in
connection with letters of credit or reimbursement obligations in respect
thereof.
6.3. Limitation on Liens. Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of such Person in conformity with GAAP (or,
in the case of Foreign Subsidiaries, generally accepted accounting principles in
effect from time to time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers, compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of such Person;
(f) Liens securing Indebtedness of the Borrower permitted by Section
6.2(d) incurred to finance the acquisition of fixed or capital assets (whether
pursuant to a loan, a Financing Lease or otherwise), provided that (i) such
Liens shall be created substantially simultaneously with the acquisition of such
fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness, (iii) the amount
of Indebtedness secured thereby is not increased and (iv) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed 90% of the
original purchase price of such property of such property at the time it was
acquired;
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(g) Liens (not otherwise permitted hereunder) which secure
obligations in aggregate amount at any time outstanding not exceeding (as to the
Borrower and all Subsidiaries), and on property with an aggregate value not
exceeding, $1,500,000;
(h) Liens created pursuant to the Security Documents; and
(i) Liens in connection with the Wheeling Bonds.
6.4. Limitation on Guarantee Obligations. Create, incur, assume or suffer
to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date hereof and listed
on Schedule 6.4(a);
(b) Guarantee Obligations incurred after the date hereof in an
aggregate amount not to exceed $500,000 at any one time outstanding;
(c) guarantees made in the ordinary course of its business by the
Borrower of obligations of any of its Subsidiaries, which obligations are
otherwise permitted under this Agreement; and
(d) the Guarantees.
6.5. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any one or more wholly owned Subsidiaries
of the Borrower (provided that a wholly owned Domestic Subsidiary or Domestic
Subsidiaries shall be the continuing or surviving corporation); and
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other wholly owned Domestic Subsidiary of the
Borrower.
6.6. Limitation on Sale of Assets. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the
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case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital
Stock to any Person other than the Parent or any wholly owned Domestic
Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property
in the ordinary course of business; provided that the Net Proceeds of each such
transaction are applied to the prepayment of the Loans as provided in Section
2.10(a);
(b) the sale of inventory in the ordinary course of business;
(c) as permitted by Section 6.5(b);
(d) the sale or other disposition of any other property for
consideration not in excess of $500,000; provided that the Net Proceeds of each
such transaction are applied to the prepayment of the Loans as provided in and
to the extent required by Section 2.10(a); and
(e) any other Asset Sale; provided that (i) any consideration
received therefor has been determined by Borrower's Board of Directors to be at
fair market value, (ii) at least 90% of such consideration is paid in cash and
(iii) the Net Proceeds of each such transaction are applied to the prepayment of
the Loans as provided in and to the extent required by Section 2.10(a), except
that this clause (iii) shall not apply to Net Proceeds from the sale of
Borrower's plants currently located in New Jersey and Georgia to the extent that
the aggregate consideration received therefor does not exceed $2.0 million.
6.7. Limitation on Dividends. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Parent or any Subsidiary or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Parent or
any Subsidiary thereof (each such declaration, payment, setting apart, purchase,
redemption, defeasance, retirement, acquisition and distribution being herein
called a "Restricted Payment"), except that (i) dividends payable to Holdings
from the IPO proceeds shall not constitute a Default or Event of Default,
provided that the Borrower has complied with Section 2.10(c), (ii) unless a
Default or Event of Default shall have occurred and be continuing before or
after giving effect to any such Restricted Payment, subsequent to the Closing
Date, the Borrower may declare and pay dividends to the Parent in an annual
amount not greater than the sum of (x) $10,000,000 and (y) fifty percent (50%)
of Net Income (exclusive of losses) for the four fiscal quarters most recently
ended prior to the date of the Restricted Payment, and (iii) any Subsidiary may
pay dividends to the Borrower.
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6.8. Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business in an aggregate amount for the Borrower and its Subsidiaries
not to exceed $100,000 at any one time outstanding; and
(d) investments by the Borrower or its Subsidiaries in any
Subsidiary of the Borrower which has complied with the conditions set forth in
Section 5.9 (to the extent applicable) or any Foreign Subsidiary which has
complied with the conditions set forth in Section 5.11; provided that the
aggregate amount of all such advances, loans, investments, transfers or
guarantees outstanding at any time made to or on behalf of the Foreign
Subsidiaries shall not exceed $750,000.
6.9. Limitation on Optional Payments and Modifications of Debt
Instruments. (a) Make any optional payment or prepayment on or redemption or
purchase of any Indebtedness (other than the Loans) or (b) amend, modify or
change, or consent or agree to any amendment, modification or change to any of
the terms of any Indebtedness (excluding the Loans) (other than any such
amendment, modification or change which would extend the maturity or reduce the
amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon).
6.10. Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
6.11. Limitation on Sales and Leasebacks. Enter into any arrangement with
any Person providing for the leasing by the Borrower or any Subsidiary of real
or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary.
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6.12. Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Parent to end on a day other than December 31.
6.13. Limitation on Negative Pledge Clauses. Enter into with any Person
any agreement, other than (a) this Agreement and (b) any industrial revenue
bonds, purchase money mortgages or Financing Leases permitted by this Agreement
(in which cases, any prohibition or limitation shall only be effective against
the assets financed thereby), which prohibits or limits the ability of the
Parent or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
6.14. Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for the manufacture and sale of
tobacco, tobacco products and materials for the packaging and marketing of
tobacco, or, in the case of the Parent, enter into any business other than
holding the Capital Stock of the Borrower, respectively, or, in the case of
Swisher International Finance Company, enter into any business other than
holding the Wheeling Bonds.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of or interest on
any Loan when due in accordance with the terms hereof; or the Borrower shall
fail to pay any other amount payable hereunder or under any Loan Document within
five days after any such other amount becomes due in accordance with the terms
hereof or thereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 5.1, 5.2, 5.4 or
5.5 or Section 6 hereof (including to the extent incorporated by reference
pursuant to Section 6 of the Subsidiaries Guarantee), Section 5(b) of any Stock
Pledge Agreement, Section 5(a) to 5(e), 5(g) or 5(i) of the Subsidiaries Note
Pledge Agreement, Section 3(b) of any Mortgage, Section 4.4, 5.5(a) or 6.2(a) or
(b) of the Borrower Security Agreement, or Section 4.5(a) or (b), 4.7, 5.5(a) or
6.2(a) or (b) of the Subsidiaries Security Agreement; or
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(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in subsections (a) through (c)
of this Section) and such default shall continue unremedied for a period of 30
days; or
(e) The Parent or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the Loans)
or in the payment of any Guarantee Obligation, beyond the period of grace (not
to exceed 30 days), if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created, if the aggregate amount
of the Indebtedness and/or Guarantee Obligations in respect of which such
default or defaults shall have occurred is at least $1,000,000; or (ii) default
in the observance or performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable; or
(f) (i) The Parent or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Parent or
any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Parent or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Parent or any of its Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Parent or any of its Subsidiaries
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shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Parent or any of its Subsidiaries involving in the aggregate a liability (not
paid or fully covered by insurance) of $500,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect, or the Borrower or any other Loan Party shall so
assert or (ii) the Lien created by any of the Security Documents shall cease to
be enforceable and of the same effect and priority purported to be created
thereby; or
(j) Any Guarantee shall cease, for any reason, to be in full force
and effect or any Guarantor shall so assert, directly or indirectly; or
(k) The beneficial ownership of any of the Capital Stock of the
Parent or the Borrower shall have changed from that in existence on the Closing
Date;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the
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following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 8. GUARANTEE
8.1. Guarantee. The Parent unconditionally and irrevocably guarantees to
the Administrative Agent, the Documentation Agent, each Lender and their
successors, endorsees, transferees and assigns the prompt payment in full when
due (whether at stated maturity, by acceleration or otherwise) of the principal
of and interest on the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent, the Documentation Agent and the Lenders
(including, without limitation, interest accruing at the then applicable rate
provided in this Agreement after the maturity of the Loans and interest accruing
at the then applicable rate provided in this Agreement after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement or any other Loan Document or any other document made, delivered or
given in connection herewith or therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent and the Lenders that are required to be
paid by the Borrower or the Parent pursuant to the terms of this Agreement or
any other Loan Document) (such obligations being herein collectively called the
"Guaranteed Obligations"). The Parent hereby further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Administrative Agent or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Guaranteed Obligations and/or
enforcing any rights with respect to, or collecting against the Parent under
this Agreement.
8.2. Obligations Unconditional. The obligations of the Parent under
Section 8.1 are continuing, absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Borrower
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under this Agreement or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations or any other collateral security
therefor or guaranty or right of offset with respect thereto at any time or from
time to time held by Administrative Agent or the Lenders, and, to the fullest
extent permitted by applicable law, irrespective of any other circumstance
whatsoever (with or without notice to or knowledge of the Borrower or the
Parent) that might otherwise constitute, or might be construed to constitute, a
legal or equitable discharge or defense, set-off or counterclaim of the Borrower
for the Guaranteed Obligations, or the Parent hereunder, in bankruptcy or in any
other instance, it being the intent of this Section 8.2 that the obligations of
the Parent hereunder shall be absolute and unconditional under any and all
circumstances. Without limiting the generality of the foregoing, it is agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of the Parent hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the Parent,
the time for any performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or compliance shall be
waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other Loan Document or agreement or instrument referred to herein
or therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Parent waives any and all notice of the creation, renewal, extension or
accrual of any of the Guaranteed Obligations and notice of or proof of reliance
by any Lender upon the Parent Guarantee or acceptance of the Parent Guarantee;
the Guaranteed Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the Parent Guarantee; and all dealings between the
Borrower or the Parent on the one hand, and the Administrative
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Agent and the Lenders, on the other, shall likewise be conclusively presumed to
have been had or consummated in reliance upon the Parent Guarantee. The Parent
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that the Administrative Agent or any
Lender exhaust any right, power or remedy or proceed against the Borrower under
this Agreement or any other Loan Document or agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations. When pursuing its rights and
remedies hereunder against the Parent, the Administrative Agent and each Lender
may, but shall be under no obligation to, pursue such rights and remedies as it
may have against the Borrower, the Parent or any other Person or against any
collateral security or guarantee for the Guaranteed Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
the Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of setoff, or any release of
the Borrower or any such other Person or of any such collateral security,
guarantee or right of setoff, shall not relieve the Parent of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent
and the Lenders against the Parent.
8.3. Reinstatement. The obligations of the Parent under this Section 8
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrower in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by the Administrative Agent or any
Lender, whether as a result of any proceedings in bankruptcy or reorganization
or otherwise and the Parent agrees that it will indemnify the Administrative
Agent and any such Lender on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
8.4. Remedies. The Parent agrees that, as between the Parent, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, the
obligations of the Borrower under this Agreement may be declared to be forthwith
due and payable as provided in Section 7 hereof (and shall be deemed to have
become automatically due and payable in the circumstances provided in said
Section 7 for purposes of Section 8.1) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable
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by the Borrower) shall forthwith become due and payable by the Parent for
purposes of Section 8.1.
8.5. Continuing Guarantee. The Parent Guarantee is a continuing guarantee
and shall apply to all Guaranteed Obligations whenever arising.
8.6. No Subrogation. Notwithstanding any payment or payments made by the
Parent hereunder or any set-off or application of funds of the Parent by any
Lender, the Parent shall not be entitled to be subrogated to any of the rights
of the Administrative Agent, the Documentation Agent or any Lender against the
Borrower or any other guarantor or any collateral security or guarantee or right
of set-off held by the Administrative Agent or any Lender for the payment of the
Obligations, nor shall the Parent seek or be entitled to seek any contribution
or reimbursement from the Borrower or any other guarantor in respect of payments
made by the Parent hereunder, until all amounts owing to the Administrative
Agent, the Documentation Agent and the Lenders by the Borrower on account of the
Guaranteed Obligations are paid in full and the Commitments are terminated. If
any amount shall be paid to the Parent on account of such subrogation rights at
any time when all of the Guaranteed Obligations shall not have been paid in
full, such amount shall be held by such Loan Party in trust for the
Administrative Agent, the Documentation Agent and the Lenders, segregated from
other funds of such Loan Party, and shall, forthwith upon receipt by such Loan
Party, be turned over to the Administrative Agent in the exact form received by
such Loan Party (duly endorsed by such Loan Party to the Administrative Agent,
if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Administrative Agent may determine.
SECTION 9. ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT
9.1. Appointment. Each Lender hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
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9.2. Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
9.3. Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
9.4. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
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69
9.5. Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6. Non-Reliance on Administrative Agent, and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent, the Documentation
Agent or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent or the Documentation Agent
hereinafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Administrative Agent
or the Documentation Agent to any Lender. Each Lender represents to the
Administrative Agent and the Documentation Agent that it has, independently and
without reliance upon the Administrative Agent, the Documentation Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent, the Documentation Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent and the Documentation
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower which may come into the possession of the Administrative Agent or the
Documentation Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
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70
9.7. Indemnification. The Lenders agree to indemnify the Administrative
Agent and the Documentation Agent in their capacities as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent or the
Documentation Agent in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Loan Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent or the
Documentation Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's or the Documentation Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.
9.8. Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9. Successor Administrative Agent. The Administrative Agent may resign
as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative
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71
Agent's resignation as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
9.10 The Documentation Agent. The Documentation Agent, in its capacity as
such, shall have no duties or responsibilities hereunder or under any Loan
Document nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Documentation Agent
in its capacity as such.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Loan or of any installment thereof, or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release all or
substantially all of the Collateral, in each case without the written consent of
all the Lenders, or (iii) release any Guarantee or any material portion of the
Collateral, or amend, modify or waive any provision of Section 2.10, in each
case without the written consent of all the Lenders, or (iv) amend, modify or
waive any provision of Section 9 without the written consent of the then
Administrative Agent, or (v) amend, modify or waive any provision of this
Agreement which would directly and adversely affect the Swing Line Lender, the
Documentation Agent or the Issuing Lender, without the written consent of the
then Swing Line Lender, the Documentation Agent and the Issuing Lender, as the
case may be. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Parent, the Lenders, the
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72
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
10.2. Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows in
the case of the Borrower, the Parent and the Administrative Agent, and as set
forth in Schedule I in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto:
The Borrower or the
Parent: Swisher International, Inc.
20 Thorndal Circle
Darien, CT 06820
Attention: Chief Financial Officer
Fax: (203) 656-3151
The Administrative
Agent: Bank of Boston Connecticut
One Landmark Square
Suite 2002
Stamford, CT 06901
Attention: Swisher Relationship Manager
Fax: (203) 967-1869
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.2, 2.4, 2.6, 2.9, 2.11 or 2.16 shall not be
effective until received.
10.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein
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73
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4. Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder until all obligations hereunder and under the other Loan
Documents have been paid in full and the Commitments hereunder have been
terminated.
10.5. Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse each of the Administrative Agent for all its out-of-pocket costs and
expenses incurred in connection with the development, preparation, syndication
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
to each Lender and of counsel to the Administrative Agent, (c) to pay,
indemnify, and hold each Lender and the Administrative Agent harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender, the Documentation Agent and the Administrative Agent harmless from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents or
the use of the proceeds of the Loans in connection with the Acquisition and any
such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent or any such Lender. The agreements in
this subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
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74
10.6. Successors and Assigns; Participation and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable law, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.18, 2.19, 2.20 and 2.21 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of Section 2.19, such Participant
shall have complied with the requirements of said Section and provided, further,
that no Participant shall be entitled to receive any greater amount pursuant to
any such subsection than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate thereof or to an additional bank or
financial institution (an "Assignee"), in the case of any assignment relating to
Revolving Credit Loans to such an additional bank or financial institution with
the consent of the Borrower and the Administrative Agent (which consents in each
case shall not be unreasonably withheld), all
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75
or any part of its rights and obligations under this Agreement and the other
Loan Documents pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit J, executed by such Assignee, such assigning Lender (and, to the
extent required, by the Borrower and the Administrative Agent) and delivered to
the Administrative Agent for its acceptance and recording in the Register,
provided that, in the case of any such assignment to an additional bank or
financial institution, the sum of the aggregate principal amount of the Loans
and the aggregate amount of the Available Commitment being assigned and, if such
assignment is of less than all of the rights and obligations of the assigning
Lender, the sum of the aggregate principal amount of the Loans and the aggregate
amount of the Available Commitment remaining with the assigning Lender are each
not less than $5 million. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, 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 rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this subsection and subsection (e) below, the consent of the
Borrower shall not be required, and, unless requested by the Assignee and/or the
assigning Lender, new Notes shall not be required to be executed and delivered
by the Borrower, for any assignment which occurs at any time when any of the
events described in clause (f) of Section 7 shall have occurred and be
continuing.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at the address of the Administrative Agent referred to in Section 10.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amounts of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of a Loan
or other obligation hereunder or under any Note as the owner thereof for all
purposes of this Agreement and the other Loan Documents, notwithstanding any
notice to the contrary. Any assignment of any Loan or other obligation hereunder
or under any Note shall be effective only upon appropriate entries with respect
thereto being made in the Register. The Register shall be available for
inspection by the Borrower or any Lender 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 and an Assignee (and, in the case of any assignment relating to
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76
Revolving Credit Loans to an Assignee that is not then a Lender or an affiliate
thereof, by the Borrower and the Administrative Agent) together with payment to
the Administrative Agent by the assigning Lender or Assignee of a registration
and processing fee of $2,000 (except that no such registration and processing
fee shall be payable in the case of an Assignee which is already a Lender or is
an Affiliate of a Lender), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of Section 10.15, any and all financial information in
such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
10.7. Adjustments; Set-off.
(a) If any Lender (a "benefitted Lender") shall at any time receive
any payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in clause (f) of
Section 7, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
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77
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to
setoff and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
10.8. Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.9. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10. Integration. This Agreement and the other Loan Documents represent
the agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12. Submission To Jurisdiction; Waivers. The Parent and the Borrower
each hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive
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78
general jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
10.13. Acknowledgments. Each of the Parent and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or the Parent arising out of
or in connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower and the Parent, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower, the Parent and the Lenders.
10.14. WAIVERS OF JURY TRIAL. THE PARENT, THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR
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79
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.15. Confidentiality. Each Lender agrees to keep confidential all
non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to the Administrative Agent or any other Lender, (ii) to any Transferee which
receives such information having been made aware of the confidential nature
thereof, (iii) to its employees, directors, agents, attorneys, accountants and
other professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, or (vii) in connection with the exercise of
any remedy hereunder.
<PAGE>
The parties hereto have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and
year first above written.
SWISHER INTERNATIONAL, INC.
By /s/ Robert A. Britton
------------------------------
Robert A. Britton
Title: Vice President and
Chief Financial Officer
SWISHER INTERNATIONAL GROUP INC.
By /s/ Robert A. Britton
------------------------------
Robert A. Britton
Title: Vice President
BANK OF BOSTON CONNECTICUT, as
Administrative Agent, Lender,
Issuing Lender and Swing Line Lender
By _________________________________
Richard J. Klouda
Title: Vice President
SOCIETE GENERALE, as
Documentation Agent and Lender
By _________________________________
Name:
Title:
<PAGE>
The parties hereto have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and
year first above written.
SWISHER INTERNATIONAL, INC.
By _________________________________
Robert A. Britton
Title: Vice President and
Chief Financial Officer
SWISHER INTERNATIONAL GROUP INC.
By _________________________________
Robert A. Britton
Title: Vice President
BANK OF BOSTON CONNECTICUT, as
Administrative Agent, Lender,
Issuing Lender and Swing Line Lender
By /s/ Richard J. Klouda
---------------------------------
Richard J. Klouda
Title: Vice President
SOCIETE GENERALE, as
Documentation Agent and Lender
By _________________________________
Name:
Title:
<PAGE>
The parties hereto have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers as of the day and
year first above written.
SWISHER INTERNATIONAL, INC.
By _________________________________
Robert A. Britton
Title: Vice President and
Chief Financial Officer
SWISHER INTERNATIONAL GROUP INC.
By _________________________________
Robert A. Britton
Title: Vice President
BANK OF BOSTON CONNECTICUT, as
Administrative Agent, Lender,
Issuing Lender and Swing Line Lender
By _________________________________
Richard J. Klouda
Title: Vice President
SOCIETE GENERALE, as
Documentation Agent and Lender
By /s/ Erick R. Rinner
---------------------------------
Name: Erick R. Rinner
Title: Assistant Vice President
<PAGE>
Other Lenders:
SANWA BUSINESS CREDIT CORPORATION
By /s/ John J. McKenna
---------------------------------
Name: John J. McKenna
Title: First Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By _________________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER, INC.
By _________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By _________________________________
Name:
Title:
IMPERIAL BANK
By _________________________________
Name:
Title:
<PAGE>
Other Lenders:
SANWA BUSINESS CREDIT CORPORATION
By _________________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ Attila Koc
---------------------------------
Name: Attila Koc
Title: Authorized Signatore
LEHMAN COMMERCIAL PAPER, INC.
By _________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By _________________________________
Name:
Title:
IMPERIAL BANK
By _________________________________
Name:
Title:
<PAGE>
Other Lenders:
SANWA BUSINESS CREDIT CORPORATION
By _________________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By _________________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER, INC.
By /s/ Michele Swanson
--------------------------------
Name: Michele Swanson
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND PLC
By _________________________________
Name:
Title:
IMPERIAL BANK
By _________________________________
Name:
Title:
<PAGE>
Other Lenders:
SANWA BUSINESS CREDIT CORPORATION
By _________________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By _________________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER, INC.
By _________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Grant F. Stoddart
---------------------------------
Name: Grant F. Stoddart
Title: Senior Vice President & Manager
IMPERIAL BANK
By _________________________________
Name:
Title:
<PAGE>
Other Lenders:
SANWA BUSINESS CREDIT CORPORATION
By _________________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By _________________________________
Name:
Title:
LEHMAN COMMERCIAL PAPER, INC.
By _________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By _________________________________
Name:
Title:
IMPERIAL BANK
By /s/ Ray Vadalma
---------------------------------
Name: Ray Vadlma
Title: Senior Vice President
<PAGE>
SOUTHERN PACIFIC THRIFT AND LOAN
ASSOCIATION
By /s/ Chris Kelleher
---------------------------------
Name: Chris Kelleher
Title: Vice President
MELLON BANK, N.A.
By _________________________________
Name:
Title:
CRESCENT MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By _________________________________
Name:
Title:
PENNSYLVANIA LIFE INSURANCE COMPANY
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By _________________________________
Name:
Title:
COBANK ACB
By _________________________________
Name:
Title:
<PAGE>
SOUTHERN PACIFIC THRIFT AND LOAN
ASSOCIATION
By _________________________________
Name:
Title:
MELLON BANK, N.A.
By /s/ Frank P. Mohepp
---------------------------------
Name: Frank P. Mohepp
Title: Vice President
CRESCENT MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By _________________________________
Name:
Title:
PENNSYLVANIA LIFE INSURANCE COMPANY
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By _________________________________
Name:
Title:
COBANK ACB
By _________________________________
Name:
Title:
<PAGE>
SOUTHERN PACIFIC THRIFT AND LOAN
ASSOCIATION
By _________________________________
Name:
Title:
MELLON BANK, N.A.
By _________________________________
Name:
Title:
CRESCENT MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
its Investment Manager
By /s/ Justin L. Driscoll
---------------------------------
Name: Justin L. Driscoll
Title: Vice President
PENNSYLVANIA LIFE INSURANCE COMPANY
By: TCW ASSET MANAGEMENT COMPANY,
its Investment Manager
By /s/ Justin L. Driscoll
---------------------------------
Name: Justin L. Driscoll
Title: Vice President
COBANK ACB
By _________________________________
Name:
Title:
<PAGE>
SOUTHERN PACIFIC THRIFT AND LOAN
ASSOCIATION
By _________________________________
Name:
Title:
MELLON BANK, N.A.
By _________________________________
Name:
Title:
CRESCENT MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By _________________________________
Name:
Title:
PENNSYLVANIA LIFE INSURANCE COMPANY
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By _________________________________
Name:
Title:
COBANK ACB
By /s/ Antony Bahr
---------------------------------
Name: Antony Bahr
Title: VP
<PAGE>
SCHEDULE I
TO CREDIT AGREEMENT
LENDERS' COMMITMENTS AND ADDRESSES FOR NOTICES
Revolving Credit A Term Loan B Term Loan
Name/Address Commitment Commitment Commitment
- ------------ ---------- ---------- ----------
Bank of Boston Connecticut $6,890,630 20,932,621.35 $ 6,000,000
One Landmark Square
Suite 2002
Stamford, Connecticut 06901
Attn: Richard J. Klouda
Fax: 203.967-8169
Societe Generale $5,400,000 $19,187,500 $ 5,000,000
1221 Avenue of the Americas
New York, New York 10020
Attn: Erick Rinner
Fax: 212.278.6418
Sanwa Business Credit $3,890,047 $13,957,346 $ 6,000,000
Corporation
500 Glenpointe Center West
Teaneck, NJ 07666-6802
Attn: Peter Skavla
Fax: 201.836.4744
Credit Lyonnais Cayman $3,024,000 $10,850,000 $ 5,230,000
Island Branch
c/o Credit Lyonnais New
York Agency
1301 Avenue of the Americas
New York, NY 10019
Attn: C.J. Baldoni
Fax: 212.459.3176
<PAGE>
Lehman Commercial Paper, $1,493,918.10 $ 3,649,441.01 -0-
Inc.
3 World Financial Center
New York, New York 10285
Attn: Dennis Dee
Fax: 212.528.0819
The Royal Bank of Scotland $1,675,140 $ 6,010,340 $ 1,818,182
plc
88 Pine Street, 26th Floor
New York, NY 10005
Attn: Derek Bonnar
Fax: 212.480.0791
Imperial Bank $1,872,643 $ 5,812,500 $ 2,328,000
9920 South LaCienga Blvd.
Suite 1015
Inglewood, CA 90301
Attn: Margo Gravin
Fax: 310.417.5997
Southern Pacific Thrift $1,406,669 $ 4,659,575 $ 1,862,965
and Loan Association
12300 Wilshire Boulevard
Suite 200
Los Angeles, CA 90025
Attn: Chris Kelleher
Fax: 310.207.4067
Mellon Bank, N.A. -0- $ 5,000,000 -0-
Raritan Plaza 1, Raritan
Center Edison, NJ 08837
Attn: David W. Kaiser
Fax: 908.225.4820
<PAGE>
Crescent Mach I Partners, L.P. -0- $ 1,239,147 $ 1,760,853
c/o TCW Asset Management Co.,
as agent
200 Park Avenue, Suite 2200
New York, NY 10166
Attn: Justin L. Driscoll
Fax: 212.212.297.4159
Pennsylvania Life Insurance Company -0- $ 2,000,000 -0-
c/o TCW Asset Management Co.,
as agent
200 Park Avenue, Suite 2200
New York, NY 10166
Attn: Justin L. Driscoll
Fax: 212.212.297.4159
CoBank ACB $1,346,954.40 $ 3,253,948.99 -0-
5500 South Quebec Street
Englewood, CO 80111
Attn: Antony Bahr
Fax: 303.740.4002
The First National Bank -0- $ 9,677,419.35 -0-
of Boston
100 Federal Street
Boston, MA 02110
Attn: Edward A. Hamilton
Fax: 617.434.0382
TOTAL: $27,000,000 $96,875,000 $30,000,000
<PAGE>
SCHEDULE 3.1(a) and 6.4(a)
List of Guarantees and Underlying Leases
1. Guarantee, dated May 6, 1987, in respect of the lease of premises located
at 246 Main Street, Monroe, Connecticut, between David Bernard Sippin,
Mark Bernard Sippin and Gary B. Sippin, d/b/a D.M.G. Enterprises, as
Landlord, and Lloyd Home & Building Centers, Inc., as Tenant, dated March
11, 1987.
2. Guarantee in respect of the lease of premises located at Tucker Drive,
Town of Poughkeepsie, Dutchess County, New York, between Thomas Espie and
Betty Espie as Landlord and Lloyd Home & Building Centers, Inc., as
Tenant, dated February 20, 1985.
3. Guarantee in respect of the lease of premises located at Route 9 and
Osborn Hill Road, Town of Wappingers, Dutchess County, New York, between
22 Associates, a New York partnership, as Landlord and Lloyd Home &
Building Centers, Inc., as Tenant, dated April 24, 1987.
4. Guarantee in respect of the lease of premises located at Route 22,
Pawling, Dutchess County, New York, between Philip P. Buxbaum,
Jr., as Landlord, and Dill Enterprises, Inc. ("Dill"), as Tenant,
dated May 1, 1978; American Maize-Products Company ("AMPCo") as
successor to Dill in connection with the acquisition of Dill by
AMPCo; Inc. H. Swisher & Son, Inc. ("Swisher") as assignee upon
assignment of the lease by AMPCo; Lloyd Home & Building Centers,
Inc. ("Lloyd"), as assignee upon assignment of the lease by
Swisher; and Fort Brewster Trading Post, Inc. as assignee upon
assignment of the lease by Lloyd.
<PAGE>
SCHEDULE 3.6
MATERIAL LITIGATION
1. Sontag v. United States Tobacco, et al. (Helme), U.S. District Court, Western
District of Louisiana, Lake Charles Division, Case No. CV96-0100
One or about December 18, 1995, an action was initiated by Arthur Sontag and his
wife Beverly against U.S. Tobacco, Pinkerton, Conwood, Helme (Swisher) and
various industry councils and distributors. The complaint's allegations are
markedly similar to the Hammers complaint (since dismissed) and allege that
nicotine is addictive, that the manufacturers manipulate levels of nicotine and
that the manufacturers aim sales at minors The complaint alleges that Sontag
used the products of all of the defendant manufacturers.
<PAGE>
SCHEDULE 3.8
REAL PROPERTY
A. Fee Properties
1. 459 East 16th Street, Jacksonville, Florida
2. 600 Haines Street, Waycross, Georgia
3. 4 Maple Street, Helmetta, New Jersey
4. 401 West Fulton Street, Edgerton, Wisconsin
5. 423 North Prince Street, Lancaster, Pennsylvania
6. Route #40, West, Brookneal, Virginia
7. 4th Campbell Road, Hopkinsville, Kentucky
B. Leased Property
1. 1405 East Ashley, Jacksonville, Florida
2. 2100 Walnut Street, Jacksonville, Florida
3. 560 Hecksher Drive, Jacksonville, Florida
4. 451 North Drive, Hopkinsville, Kentucky
5. 4115 Pembroke Road, Hopkinsville, Kentucky
6. 40 West Lemon Street, Lancaster, Pennsylvania
7. 417-419 North Prince Street, Lancaster, Pennsylvania
8. 4000 Water Street, Wheeling, West Virginia
<PAGE>
Schedule 3.13
ERISA Reportable Events
None
<PAGE>
SCHEDULE 3.19(C)
FILING OFFICES
Property Location Filing Office: Mortgage Filing Office: Additional
and UCC-2 UCC-1 Filing Office
Jacksonville, Clerk of the Circuit Secretary of
Florida Court State
Duval County Clerk Attn: UCC
Attn: Recording Dept. Section
330 East Bay Street 409 East Gaines
Room 103 Tallahassee, FL
Jacksonville, Fl 32202 32601
Phone: 604-630-2048
Wheeling, West Chester Kloss Secretary of
Virginia City-County Bldg, 2nd State
Fl. Attn: UCC
1500 Chapline Street Section
Wheeling, WV 26003 West Wing, Room
131
Charleston, WV
25305
Helmetta, New Clerk of Middlesex Secretary of
Jersey County State
Courthouse East Wing Commercial
New Brunswick, NJ 06901 Recording
820 Bear Tavern
Road
West Trenton,
NJ 08628
Waycross, Georgia Clerk of the Superior Ware County
Court Attn: UCC
Ware County Section
P.O. Box 778 P.O. Box 776
Waycross, GA 31501-0776 Waycross, GA
Phone: 912-287-1340 31501-0776
Lancaster, Recorder of Deeds County Clerk Office
Pennsylvania Lancaster City Lancaster City Prothonotary
Courthouse Courthouse Lancaster
50 North Duke Street 50 North Duke Court
Lancaster, PA 17602 Street Courthouse
Lancaster, PA 50 North Duke
17602 Street
Lancaster, PA
17602
Brookneal, Clerk of the Circuit Secretary of
Virginia Court State
Courthouse Attn: UCC
5 Main Street Section
Halifax, VA 24558 1300 East Main
Richmond, VA
23291
Edgerton, Register of Deeds Secretary of
Wisconsin Courthouse State
51 South Main Street 30 West Mifflin
Janesville, WI 53545 9th Floor
Madison, WI
53703
Hopkinsville, Christian County Clerk Secretary of
Kentucky Courthouse State
511 South Main Street Attn: UCC
Hopkinsville, KY 42240 Section
Capital Bldg,
Room 79
Frankfort, KY
40602
Note: PA Requires Three (3) Filings for UCC's
(A) Recorders Office
(B) County Clerks Office
(C) Prothonotary Office
<PAGE>
Amendment, Affirmation and Consent
As of October 28, 1996
The Lenders (as defined below)
and
Bank of Boston Connecticut, as Agent
One Landmark Square
Suite 2002
Stamford, CT 06901
Ladies and Gentlemen:
We refer to the Second Amended and Restated Credit Agreement dated as of
the date hereof among Swisher International, Inc., Swisher International Group
Inc., formerly known as Royal American Holding Corporation, the several
"Lenders" parties thereto, Bank of Boston Connecticut, as Administrative Agent,
and Societe Generale, as Documentation Agent (the "Second Restated Credit
Agreement"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Second Restated Credit Agreement. This
Amendment, Affirmation and Consent is delivered to the Administrative Agent and
the Lenders pursuant to Section 4.1(l) of the Second Restated Credit Agreement.
By its signature below, each of the undersigned (i) acknowledges and
consents to the Second Restated Credit Agreement, and the terms and conditions
thereof, (ii) reaffirms the covenants and agreements contained in each Loan
Document to which it is a party, including in each case, as such covenants and
agreements may be modified by the Second Restated Credit Agreement and the
transactions contemplated thereby, (iii) certifies that, as of the date hereof
(both before and after giving effect to the effectiveness of the Second Restated
Credit Agreement), the representations and warranties contained in the Loan
Documents to which each of the undersigned is a party are true and correct with
the same effect as if made on the date hereof except to the extent such
representations or warranties relate to a date prior to the date hereof (in
which case such representations and warranties were true and correct as of such
earlier date), and (iv) confirms that each Loan Document to which it is a party
is and shall continue to be in full force and effect and that the same are
hereby ratified and confirmed in all respects.
<PAGE>
Each of the undersigned has caused this Amendment, Affirmation and Consent
to be executed and delivered by its officer hereunto duly authorized as of the
date first above written.
SWISHER INTERNATIONAL GROUP INC.
By /s/ Robert A. Britton
------------------------------
Robert A. Britton
Title: Vice President
SWISHER INTERNATIONAL, INC.
By /s/ Robert A. Britton
------------------------------
Robert A. Britton
Title: Vice President and Chief
Financial
Officer
MARTIN BROTHERS INTERNATIONAL,
INC.
By /s/ Robert A. Britton
------------------------------
Robert A. Britton
Title: Vice President
SWISHER INTERNATIONAL FINANCE
CORPORATION
By /s/ Robert A. Britton
------------------------------
Robert A. Britton
Title: Vice President
<PAGE>
HAY ISLAND HOLDING COMPANY
AND
SWISHER INTERNATIONAL GROUP INC.
AND ITS SUBSIDIARIES
FORM OF TAX SHARING AGREEMENT
This Tax Sharing Agreement (hereinafter referred to as the "Agreement")
provides for the allocation, settlement, and financial statement presentation of
federal income taxes in the consolidated federal income tax return of SWISHER
INTERNATIONAL GROUP INC. (the "Sub") and its subsidiaries (the "SubGroup
Members") (collectively, the "SubGroup") and HAY ISLAND HOLDING COMPANY (the
"Parent").
W I T N E S S E T H :
WHEREAS, the parties hereto are members of an affiliated group (the
"Group") as defined in Section 1504(a) of the Internal Revenue Code of 1986, as
amended (the "Code").
WHEREAS, the Parent has agreed to ensure that the Group has properly
elected to file consolidated federal income tax returns using the methods
prescribed in Treasury Regulations Section 1.1502-33(d)(3) and Treasury
Regulations Section 1.1552-1(a)(2) for purposes of determining the earnings and
profits of each member of the Group and of the Group;
WHEREAS, the Parent and the members of the Group agree that as a
condition precedent to filing a consolidated tax return it is necessary to
properly provide in this Agreement methods for (1) allocating consolidated
federal
<PAGE>
income tax liability for federal income tax purposes among members of
the Group, (2) reimbursing Parent for payment or assumption of such tax
liability on behalf of members of the Group and (3) having those members of the
Group that benefit from the losses or credits of other members compensate such
other members for use of the benefits; and
WHEREAS, while the Parent and members of the Group currently file a
consolidated tax return, both parties acknowledge that the Parent has the right
to deconsolidate SubGroup, in which event, Parent would no longer be obligated
to the IRS for federal taxes which relate to SubGroup;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1.1 PREPARATION
The parent shall prepare and file a consolidated federal income tax
return including SubGroup until notice of revocation is given by Parent to
SubGroup.
1.2 PAYMENT OF TAX
The Parent shall act as sole agent for SubGroup and all other members
of the Group for payment of any tax liability as may be shown on a consolidated
federal income tax return of the Group and for all other purposes as required by
Treasury Regulations Section 1.1502-77(a).
1.3 INTERCOMPANY PAYMENTS
The Parent and SubGroup shall accrue responsibilities for payment and
make payments to each other in such amounts, at such time and in such manner as
provided in
-2-
<PAGE>
Article 2 of this Agreement. The obligations created as a result of this
Agreement between the Parent and SubGroup shall be treated as if between an
unrelated party, on an arms-length basis.
1.4 CONSIDERATION
In consideration for Parent and other members of the consolidated
group remaining liable for the tax liability of SubGroup, SubGroup hereby agrees
to the terms and conditions contained in this Agreement, including the
obligation to reimburse Parent for payment or assumption of any SubGroup tax
liability.
ARTICLE 2
2.1 DETERMINATION OF SUBGROUP'S TAXABLE INCOME LOST AND TAXABLE GAINS
(a) SubGroup shall collectively (i.e., disregarding payments and
transactons between SubGroup members) determine its taxable income or loss
on a separate return basis for each income year calculated pursuant to Treasury
Regulations Section 1.1502-12 ("Separate Taxable Income or Tax Loss").
(b) In addition to determining its Separate Taxable Income or Tax
Loss for each taxable year, SubGroup shall collectively determine its taxable
capital gains and its taxable gains subject to Section 1231 of the Code with
respect to each transaction giving rise to such taxable gain ("Separate Taxable
Gains"). Such determination shall be made as soon as is administratively
feasible after each event which gave rise to each such Separate Taxable Gain.
-3-
<PAGE>
2.2 DETERMINATION OF TAX LIABILITY BY SUBGROUP
(a) To the extent that SubGroup collectively has Separate Taxable
Income or Separate Taxable Gains during any income year, SubGroup shall be
liable for the payment to Parent of an amount equal to SubGroup's "Separate Tax
Liability."
(b) For all purposes of this Agreement, SubGroup's "Separate Tax
Liability" shall be equal to the sum of (i) the federal tax liability which
SubGroup would have incurred with respect to this Separate Taxable Income if
SubGroup had filed its own separate consolidated federal tax return and (ii) the
federal tax liability which SubGroup would have incurred with respect to its
Separate Taxable Gains if SubGroup had filed its own separate consolidated
federal tax return.
(c) To the extent that SubGroup had Separate Taxable Income in any
year and is eligible to carry forward a net operating loss of SubGroup from a
prior income year to the current income year, the Separate Taxable Income of
SubGroup shall be reduced by such net operating loss.
(d) To the extent that SubGroup has Separate Taxable Gains in any
income year and is eligible to carry forward a capital loss of SubGroup from a
prior income year to the current income year, the Separate Taxable Gains of
SubGroup shall be reduced by such capital loss.
(e) SubGroup's liability to Parent for payment of SubGroup's Separate
Tax Liability shall accrue: (i) with respect to SubGroup's Separate Taxable
Income, ratably during each income year, and (ii) with respect to SubGroup's
Separate Taxable Gains, as of the date of the transaction which gave rise to
each such Separate Taxable Gain. Notwithstanding
-4-
<PAGE>
anything to the contrary in the foregoing, payment shall be made at such times
and in such manner as is set forth in Section 2.7 below.
2.3 CREDIT FOR SEPARATE TAX LOSS
(a) To the extent that SubGroup has Separate Tax Loss during any
income year, the Parent shall accrue for the account of SubGroup an amount equal
to the tax benefit attributable to such Separate Tax Loss that SubGroup would
have realized if SubGroup had filed its own separate consolidated federal return
during the current income year and SubGroup had been able to utilize such tax
benefit as the result of the carryback of such Separate Tax Loss to an income
year in which SubGroup had Separate Taxable Income, but only if and to the
extent that such Separate Taxable Income was generated during the period
SubGroup was a member of the Group. If SubGroup is not able to utilize the tax
benefit attributable to such Separate Tax Loss due to the absence of any
Separate Taxable Income in prior years to which SubGroup could carryback such
Separate Tax Loss, Parent shall accrue for the account of SubGroup an amount
equal to the tax benefit attributable to such Separate Tax Loss for a subsequent
tax year during which SubGroup has Separate Taxable Income to which such tax
benefit could be carried over.
(b) Notwithstanding that SubGroup has Separate Tax Loss during any
income year, SubGroup shall be liable for payment to the Parent of an amount
equal to SubGroup's Separate Tax Liability accrued during such year with respect
to its Separate Taxable Gains to the extent such Separate Taxable Gains are not
offset by such Separate Tax Loss.
-5-
<PAGE>
(c) Parent's liability to SubGroup for payment of credits for federal
income tax purposes for Separate Tax Loss shall accrue ratably during each
income year in which such credit is accrued.
2.4 TAX CREDITS
If SubGroup has any tax credits which for federal income tax purposes
can be applied against its Separate Tax Liability, the Parent shall credit the
account of SubGroup.
2.5 APPLICABLE TAX RATES
The Separate Tax Liability of SubGroup will be computed pursuant to
Section 2.2 by applying the then-appropriate corporate tax rates for its
computed Separate Taxable Income and Separate Taxable Gains. Any tax
adjustments necessitated by this method of allocation to ensure that
the sum of tax charges/credits is equal to the tax liability of the
Group will be borne by the Parent.
2.6 ALTERNATIVE MINIMUM TAX
Notwithstanding the provisions of Sections 2.2 and 2.3 of this
Agreement, in the event that the Group must pay the federal alternative minimum
tax pursuant to Code Section 55, SubGroup will be charged by the Parent with its
separate share of the total alternative minimum tax liability of the Group that
reflects the alternative minimum taxable income resulting from the federal
alternative minimum tax attributes of SubGroup based upon the Separate
Alternative Minimum Taxable Income calculated for SubGroup.
2.7 PAYMENT OF TAX LIABILITY; SECURITY FOR PAYMENT
SubGroup shall pay to Parent the amount of its Separate Tax Liability,
as determined and accrued under Section 2.2 of this Agreement, including payment
of any
-6-
<PAGE>
estimated tax due with respect thereto within 20 days upon request by the
Parent but in any event no later than March 15, June 15, September 15, and
December 15 of each income year. Such payment requests are intended but are not
required to support the federal income tax payments required to be made by the
Parent. The Parent will make such payments of any federal income tax as shall
be due throughout the income year on the days provided for payment of such tax,
including installments of estimated federal income taxes due pursuant to Code
Section 6655.
2.8 PAYMENT OF TAX BENEFITS
The Parent shall pay SubGroup any amounts accrued under Section 2.3
and 2.4 of this Agreement the later of: (i) thirty (30) days after the Parent
files with Internal Revenue Service a consolidated federal tax return, amended
return or refund claim in which tax benefit attributable to SubGroup is
actually utilized to provide a tax savings to the Group or (ii) when the
SubGroup would, under a seperate return calculation, be able to utilize the tax
benefit. The amount due and payable to SubGroup shall not exceed the amount of
such tax savings actually utilized by the Group as a result of such filing.
2.9 ADJUSTMENT OF CONSOLIDATED FEDERAL TAX LIABILITY
In the event that for any reason there is an adjustment to the Group's
federal income tax liability, the consolidated tax liability of each member
shall be recomputed in accordance with the provisions of this Agreement to
reflect such adjustment. In the event of any overpayment of tax by SubGroup as
determined as a result of such adjustment, the Parent shall
make payment to SubGroup for the amount of the overpayment within ten (10) days
after the determination of such overpayment. However, if the overpayment of tax
results in a refund of
-7-
<PAGE>
tax from the Internal Revenue Service, the Parent shall make payment to
SubGroup for its share of such refund, including interest, within ten (10) days
after receipt of the refund by the Parent. In the event of an underpayment of
tax by SubGroup as determined as a result of such adjustment, SubGroup shall
pay to the Parent its allocable share of such increased tax liability and any
penalties, additions to tax or interest within a reasonable time, but no later
than thirty (30) days after receiving notice of such liability from the Parent.
2.10 INDEMNIFICATION
To the extent not inconsistent with the foregoing provisions of this
Agreement, and solely regarding federal and state taxes, the Parent shall
indemnify and save the SubGroup harmless from any and all claims, demands,
actions (including federal or state tax liens, levies, audits, investigations
and assessments), interest, penalties, causes of action, suits, proceedings,
damages, liabilities, and costs and expenses of every nature whatsoever arising
therefrom (collectively a "Claim" or "Claims") that arise from the conduct
and/or tax positions taken by the Parent after the date of this Agreement.
ARTICLE 3
ADMINISTRATIVE
3.1 EFFECTIVE DATE
This Agreement shall be effective as of January 1, 1997, and shall
continue in effect until terminated as provided in Section 3.2 of this
Agreement.
-8-
<PAGE>
3.2 TERMINATION, AMENDMENT, ETC.
This Agreement may not be amended, waived, discharged or terminated,
except by a written statement signed by the Parent with written notice delivered
to SubGroup. In the event this Agreement is terminated, the methods for
allocating consolidated federal tax liability adopted by the Group shall
nonetheless be given effect with respect to any tax liability, payment or refund
for all taxable years prior to the income year in which termination occurs,
Subject to the provisions of Section 3.4.
3.3 RECORDS AND FINANCIAL STATEMENT PRESENTATION
Each party to this Agreement shall maintain its books, accounts and
records so as to disclose clearly and accurately the precise nature and details
of the transactions effected under this Agreement.
3.4 FEDERAL TAX RECEIVABLE AND PAYABLE ACCOUNTS
(a) Sub shall maintain separate accounts computed in accordance with
Article 2 of this Agreement showing the following.
3.4.1.1 Amounts due to the Parent with respect to SubGroup's
Separate Tax Liability (the "Consolidated Federal Tax Payable Account"); and
3.4.1.2 Amounts due from the Parent with respect to tax
benefits of SubGroup utilized in accordance with the terms of this Agreement to
offset the Group's federal income tax liability (the "Consolidated Federal Tax
Receivable Account").
(b) The amounts credited to the Consolidated Federal Tax Payable
Account and the Consolidated Federal Tax Receivable Account shall be shown on
the financial statements of the Parent and SubGroup, as appropriate.
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(c) Any balance in the Consolidated Federal Tax Receivable Account of
SubGroup shall be carried forward (but shall not be carried back) to offset
amounts Subsequently accrued in SubGroup's Consolidated Federal Tax Payable
Account during SubGroup's "carryforward period" specified in Code Section 172.
Subject to the following paragraph, the Parent in its sole discretion may offset
amounts in the Consolidated Federal Tax Payable Account and Tax Receivable
Account of any members within a Corporate subgroup of the Group. For purposes
of this Subsection, a Corporate subgroup is defined as one or more subsidiaries
within the common parent that is a subgroup within the Group. The common parent
and its subsidiaries together consist of a Corporate subgroup.
(d) In the event that SubGroup ceases to be a member of the group,
the Consolidated Federal Tax Receivable and Payable Accounts of SubGroup shall
be netted against each other and the remaining unreimbursed balance shall be
payable upon deconsolidation from one to the other. In the event that the
Group's consolidated status is terminated for federal income tax purposes, the
Consolidated Federal Tax Receivable and Payable Accounts of each member of the
Group shall be netted against each other and all remaining unreimbursed
balances shall be immediately payable upon the Group's termination from one
member to any other.
3.5 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall
constitute but one instrument.
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3.6 NOTICES
All notices, requests, or other communications which any of the
parties to this Agreement may desire or be required to give hereunder shall be
in writing and shall be hand-delivered or sent by registered mail or by a
nationally-recognized overnight courier service to the attention of the Chief
Financial Officers of the Parent and Sub at their principal business offices.
IN WITNESS WHEREOF, Parent and SubGroup have caused this Agreement to
be executed and delivered by their duly-authorized officers, as of the ___ day
of ________, _____.
HAY ISLAND HOLDING COMPANY
By:_____________________________________________
Vice President
SWISHER INTERNATIONAL GROUP INC. (on its own behalf and on
behalf of each SubGroup Member.)
By:_____________________________________________
Chief Financial Officer and Executive Vice President
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