<PAGE> 1
Page 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the quarterly period ended October 31, 1998
or
( ) TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the transition period from to
---------------------------
Commission File Number: 0-22798
----------------------------------
SPECIALTY EQUIPMENT COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-333759
-------- ---------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1245 Corporate Blvd., Suite 401, Aurora, IL 60504
- ------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(630) 585-5111
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all and reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirement for the past 90 days. Yes X No .
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at December 11, 1998
- -------------------------------- --------------------------------
Common Stock, $0.01 par value 18,383,777 shares
The exhibit index is on page 15.
<PAGE> 2
Page 2
PART I. FINANCIAL INFORMATION
ITEM I. FINANCIAL STATEMENTS
SPECIALTY EQUIPMENT COMPANIES, INC.
CONSOLIDATED STATEMENTS OF EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three months ended Nine months ended
October 31, October 31,
1997 1998 1997 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net revenue $ 107,694 $ 120,512 $ 330,082 $ 388,323
Cost of sales 74,532 83,251 229,307 266,441
--------- --------- --------- ---------
Gross margin 33,162 37,261 100,775 121,882
Selling, general and administrative expenses 17,985 20,238 52,246 63,461
--------- --------- --------- ---------
Earnings from operations 15,177 17,023 48,529 58,421
Interest expense, net 3,965 3,567 11,974 11,687
--------- --------- --------- ---------
Earnings from operations before income
taxes and minority interest 11,212 13,456 36,555 46,734
Income taxes 4,037 4,815 13,094 16,880
Minority interest -- 24 -- 57
--------- --------- --------- ---------
Net earnings before extraordinary item 7,175 8,617 23,461 29,797
Extraordinary item -- (1,374) -- (1,374)
--------- --------- --------- ---------
Net earnings $ 7,175 $ 7,243 $ 23,461 $ 28,423
========= ========= ========= =========
Net earnings before extraordinary item-basic $ 0.39 $ 0.47 $ 1.29 $ 1.64
Extraordinary item -- (0.07) -- (0.07)
--------- --------- --------- ---------
Basic earnings per share $ 0.39 $ 0.40 $ 1.29 $ 1.57
========= ========= ========= =========
Net earnings before extraordinary item-diluted $ 0.35 $ 0.43 $ 1.16 $ 1.48
Extraordinary item -- (0.07) -- (0.07)
--------- --------- --------- ---------
Diluted earnings per share $ 0.35 $ 0.36 $ 1.16 $ 1.41
========= ========= ========= =========
Weighted average shares outstanding - basic 18,284 18,255 18,161 18,132
Weighted average shares outstanding - diluted 20,233 20,027 20,176 20,094
</TABLE>
The accompanying notes are an integral part of these unaudited
consolidated financial statements.
<PAGE> 3
Page 3
SPECIALTY EQUIPMENT COMPANIES, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
January 31, October 31,
1998 1998
----------- -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 39,947 $ 45,045
Accounts receivable, net 63,043 71,269
Inventories 54,030 54,836
Deferred tax assets, net 15,310 15,310
Other current assets 3,143 2,955
--------- ---------
Total current assets 175,473 189,415
Property, plant and equipment, net 38,743 39,911
Restricted cash equivalents 2,662 2,033
Goodwill 15,645 15,348
Other intangibles, net 7,973 6,984
Other assets 954 429
--------- ---------
Total assets $ 241,450 $ 254,120
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Current installments of long-term debt $ 18,395 $ 18,152
Accounts payable 26,425 31,111
Accrued liabilities 68,748 81,317
Accrued income taxes 5,340 7,497
--------- ---------
Total current liabilities 118,908 138,077
Long-term debt, excluding current installments 159,591 128,316
Other non-current liabilities 1,762 1,729
Stockholders' equity (deficit):
Common stock 181 184
Additional paid-in capital 58,298 58,081
Accumulated deficit (88,041) (59,618)
Foreign currency translation adjustment (308) (323)
Other (2,327) (2,327)
Treasury stock, at cost (6,614) (9,999)
--------- ---------
Total stockholders' deficit (38,811) (14,002)
--------- ---------
Total liabilities and stockholders' deficit $ 241,450 $ 254,120
========= =========
</TABLE>
The accompanying notes are an integral part of these unaudited
consolidated statements.
<PAGE> 4
Page 4
SPECIALTY EQUIPMENT COMPANIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
Nine months ended
October 31,
1997 1998
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 23,461 $ 28,423
Items not affecting cash:
Depreciation 3,592 3,829
Amortization 664 1,300
Utilization of net operating loss carryforward 819 819
Changes in current assets and liabilities (excluding
effects of business acquired):
Accounts receivable (4,285) (8,226)
Inventories 3,843 (806)
Other current assets 2,764 188
Accounts payable and other current liabilities,
excluding current installments of long-term debt 18,552 19,774
------- ------
Net cash flows provided by operating activities 49,410 45,301
Cash flows from investing activities:
Additions to property, plant and equipment, net (2,495) (4,997)
Cash equivalents restricted for capital additions 73 629
Businesses acquired (21,492) -
-------- -------
Net cash used in investing activities (23,914) (4,368)
Cash flows from financing activities:
Proceeds from other long-term debt 18,000 -
Repayments of other long-term debt (43) (31,275)
Proceeds from exercise of stock options 592 904
Options withheld for taxes (1,836) (1,935)
Acquisition of treasury stock (1,958) (3,385)
------- -------
Net cash used in financing activities 14,755 (35,691)
------- --------
Other, net 441 (144)
---- -----
Net increase in cash 40,692 5,098
Cash:
Beginning of period 7,787 39,947
------ ------
End of period $ 48,479 $ 45,045
========= ========
</TABLE>
The accompanying notes are an integral part of these unaudited
consolidated statements.
<PAGE> 5
Page 5
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. General
These consolidated financial statements should be read with the
consolidated financial statements and the notes thereto for the fiscal year
ended January 31, 1998 included in the Company's Annual Report on Form 10-K
filed with the Securities and Exchange Commission ("Commission") on April 13,
1998.
In the opinion of management, all adjustments, consisting only of
normal recurring adjustments necessary for a fair statement of (a) the results
of operations for the three and nine month periods ended October 31, 1997 and
1998, (b) the financial position at October 31, 1998 and (c) the statements of
cash flows for the nine month periods ended October 31, 1997 and 1998, have been
made. The financial results for the three and nine months ended October 31, 1998
are not necessarily indicative of the financial results for the entire 1999
fiscal year. Certain reclassifications have been made to the prior period
financial statements to conform with the current period presentation.
Net earnings per share is computed based on the weighted average number
of basic and diluted common shares outstanding during the period.
During the quarter ended April 30, 1998, the Company adopted Statement
of Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive
Income." SFAS No. 130 establishes standards for the reporting and display of
comprehensive income and its components (revenues, expenses, gains and losses)
in a full set of general-purpose financial statements, and requires a total for
comprehensive income to be provided in condensed financial statements of interim
periods. Comprehensive income includes all changes in stockholders' equity
during the period except those resulting from investments by owners and
distributions to owners. Comprehensive earnings for the three and nine month
periods ended October 31, 1997 and 1998 consisted of the following:
<TABLE>
<CAPTION>
Three months ended Nine months ended
October 31, October 31,
1997 1998 1997 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net earnings $ 7,175 $ 7,243 $ 23,461 $ 28,423
Other comprehensive earnings (losses):
Foreign currency translation adjustment,
net of taxes 112 64 76 (9)
-------- -------- -------- --------
Comprehensive earnings $ 7,287 $ 7,307 $ 23,537 $ 28,414
======== ======== ======== ========
</TABLE>
2. Accounts Receivable
Accounts receivable at the following dates consisted of the following:
<TABLE>
<CAPTION>
January 31, October 31,
1998 1998
---------- -----------
<S> <C> <C>
Accounts receivable $ 66,998 $ 74,888
Less: allowance for doubtful accounts 3,955 3,619
-------- --------
Total $ 63,043 $ 71,269
======== ========
</TABLE>
<PAGE> 6
Page 6
SPECIALTY EQUIPMENT COMPANIES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
3. Inventories
Inventories at the following dates consisted of the following:
<TABLE>
<CAPTION>
January 31, October 31,
1998 1998
---------- ----------
<S> <C> <C>
Raw materials $ 28,602 $ 29,144
Work-in-process 8,885 9,170
Finished goods 16,624 16,603
---------- ----------
Sub-total 54,111 54,917
Less: excess of FIFO cost over LIFO 81 81
---------- ----------
Total $ 54,030 $ 54,836
========== ==========
</TABLE>
The Company uses the LIFO method of valuing inventories. LIFO, compared to
FIFO, had a de minimis effect on the cost of sales for the three and nine month
periods ended October 31, 1997 and 1998.
4. Intangibles and Goodwill:
<TABLE>
<CAPTION>
January 31, Ocober 31,
1998 1998
---------- ----------
<S> <C> <C>
Goodwill $ 15,843 $ 15,843
Less: accumulated amortization 198 495
---------- ----------
Net goodwill 15,645 15,348
========== ==========
Intangibles consist of the following:
Patents $ 991 $ 991
Other intangibles 52,076 52,076
Deferred pension costs 1,961 1,961
---------- ----------
55,028 55,028
Less: accumulated amortization 47,055 48,044
---------- ----------
Net intangibles $ 7,973 $ 6,984
========== ==========
</TABLE>
Other intangibles primarily include deferred financing fees, engineering
drawings, distribution networks and skilled workforce.
5. Income Taxes
At January 31, 1998, the Company had a net deferred tax asset of $30.4
million less a valuation allowance of $15.1 million. The Company has
approximately $13.3 million in NOL carry forwards. However, a number of issues
regarding the treatment of certain changes in ownership of the Company pursuant
to certain provisions of the Internal Revenue Code of 1986, as amended ("IRC"),
may arise which, if determined adversely, could limit the amount and/or use of
the NOL carry forwards. The NOL carry forwards are available through fiscal
2008.
<PAGE> 7
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SPECIALTY EQUIPMENT COMPANIES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
6. Long-Term Debt
Long-term debt at the following dates consisted of the following:
<TABLE>
<CAPTION>
January 31, October 31,
1998 1998
---------- ----------
<S> <C> <C>
Revolving line of credit $ -- $ --
11-3/8% senior subordinated notes due 2003 149,040 117,590
Industrial project revenue bonds due 2009 6,400 6,400
Other long-term debt 18,711 22,478
Capitalized leases 3,835 --
---------- ----------
177,986 146,468
Less: current installments 18,395 18,152
---------- ----------
Total long-term debt $ 159,591 $ 128,316
========== ==========
</TABLE>
Under the revolving credit facility, the Company had $45.0 million
available for additional borrowings.
7. Commitments and Contingent Liabilities
The Company is involved in litigation and claims incidental to its
business. The ultimate outcome of these matters cannot presently be determined
because of the uncertainties inherent in litigation. However, such claims are
being vigorously contested and management does not believe that it is probable
that the ultimate outcome of the loss contingencies relating to such litigation
and claims will have, individually or in the aggregate, a material adverse
impact upon the financial condition or results of operations of the Company.
The following is a summary of the more significant litigation and claims.
The Company was a defendant along with other defendants in an action filed
on July 20, 1995 entitled "Thermodyne Food Service Products, Inc. and AFTEC,
Inc. v. McDonald's Corporation, et al." in the United States District Court,
Northern District of Illinois, Eastern Division. Plaintiffs alleged that the
Company and other defendants misappropriated trade secrets in connection with
the Company's development of an oven for McDonald's and OSI. As a result of a
ruling on a motion to dismiss, all the claims against the Company other than the
trade secret claim were dismissed. The case was settled by the terms of a
confidential settlement agreement dated May 28, 1997 pursuant to which one of
the defendants agreed to make a settlement payment in a confidential amount.
Although the Company is not required under the terms of this settlement
agreement to pay any damages or make any settlement payments, it is possible
that the codefendant that did make a settlement payment will seek a contribution
from the Company. On or about November 13, 1998, defendants in an action
entitled "McDonald's Corporation v. American Motorists Insurance Co." No.
97L0014, pending in the Circuit Court of DuPage County Illinois, sought leave to
file a third party complaint asserting contingent subrogation rights against the
Company, and other defendants from the AFTEC litigation referred to above. The
Company expects that the court will rule on this motion shortly. The Company
has not established a reserve in its financial statements relating to this
matter.
<PAGE> 8
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SPECIALTY EQUIPMENT COMPANIES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
The Company and certain of its current and former directors are named as
defendants in an action filed by Virginia A. Noerr, who claims to own shares of
the Company's common stock. The action "Noerr v. Greenwood et al.," C.A. No.
14320, is pending in the Court of Chancery for the State of Delaware in and for
New Castle County, Delaware. Plaintiff purports to bring this action both as a
class action on behalf of all stockholders of record on April 2, 1993 and
derivatively for the benefit of the Company. Plaintiff's complaint, which has
twice been amended, asserts that (i) the defendants breached their fiduciary
duties to the Company by soliciting stockholder approval of the Company's
Executive Long-Term Incentive Plan and Non-Employee Directors Long-Term
Incentive Plan by means of a misleading proxy statement and (ii) the Board
breached its fiduciary duty in approving such option plans. The complaint seeks
an order declaring the stockholder approval of those option plans void,
canceling the options granted thereunder, enjoining the directors exercising any
such options, imposing a constructive trust for the benefit of the Company upon
any profits the individual named defendants may have made through exercise of
their options, requiring an accounting in connection therewith, and awarding
unspecified damages plus plaintiff's attorneys' fees and expenses also in an
unspecified amount. The most recent amended complaint was filed after the court
granted in part the defendants' joint motion to dismiss the complaint, striking
certain non-disclosure claims; the court's order, however, denied the remainder
of defendants' motion to dismiss. The Company and the individual defendants
believe that the allegations made in the complaint as amended are without merit
and are factually incorrect and the Company intends to contest these allegations
vigorously. The individual defendants have each made demand upon the Company for
indemnification with respect to this action. The Company believes that if the
Company were liable to the individual defendants for indemnification, the
uninsured portion of such liability would not be material to the Company.
On May 5, 1994, the Company (doing business as Taylor Freezer Company) was
among more than 80 parties notified as potential third-party defendants in an
action involving the clean up of the MIG/Dewane Landfill near Belvidere,
Illinois. A third-party complaint has been filed by the principal owners and
operators of the landfill. Those owners and operators were sued by the principal
users of the landfill who in turn had been sued by the Environmental Protection
Agency ("EPA") in April 1992. The complaint seeks contribution for the proposed
clean up of the site. The Company has not received settlement offers from the
EPA, but it settled its alleged liability with the private plaintiffs for
$54,000 for the costs associated with the remedial investigation of the site.
The Company has not settled its alleged liability for clean up costs at the
site. Beatrice Company (ConAgra) has assumed defense of the matter and has
agreed to defend and indemnify the Company for claims related to the MIG/Dewane
site to the extent they are related to Taylor and the events giving rise to the
claims occurring during the Beatrice Company (ConAgra) period of ownership.
Based upon presently available information, management does not believe this
matter will have a material effect on the Company's results of operation or
financial condition.
The Company received notice of potential environmental actions from (i)
the South Carolina Department of Health and Environmental Control ("SCDHEC") and
the EPA with respect to drums of hazardous waste materials disposed of in South
Carolina, (ii) the SCDHEC with respect to the clean up of the Unisphere
Hazardous Waste Site in Spartanburg County, South Carolina, and (iii) the Nevada
Department of Conservation and Natural Resources, Division of Environmental
Protection ("NDEP"), which issued a finding of alleged violation and order
relating to alleged soil and ground water contamination. With respect to the
SCDHEC matter discussed in (i) above, management is unable to determine the
existence or amount of its potential liabilities because no formal proceedings
have been commenced and no notifications have been received regarding this
matter since December 1992. The Company has reason to believe that this site
will be the subject of no further action by the EPA.
With respect to the SCDHEC matter discussed in (ii) above, management is
unable to determine the existence or amount of its potential liability, if any,
because the use of the site by Beverage-Air occurred prior to the purchase of
the Beverage-Air assets by the Company from Gerlach Industries in November,
1986. With respect to the NDEP matter discussed in (iii) above, the Company has
spent approximately $329,000 to conduct tests and to
<PAGE> 9
Page 9
SPECIALTY EQUIPMENT COMPANIES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
implement a remediation program, but given the pendency of the Company's appeal
and its uncertain outcome, management cannot estimate what, if any, additional
expenditures might be required, though they are not expected to materially
affect the financial position or results of operations of the Company.
Letters of Credit
As of October 31, 1998, the Company had letters of credit outstanding
totaling $10.0 million, which guarantee various business activities, including
$6.5 million of letters of credit which guarantee the Industrial Project Revenue
Bonds (see note 6 above).
8. Stock Option Plan and Stock Warrants
On May 6, 1993 the stockholders approved long-term incentive plans for
both non-employee directors and employees. Pursuant to the Non-Employee
Directors Long-Term Incentive Plan ("Director Plan") each non-employee director
was granted an option to purchase 175,241 shares of the Company's common stock
at a price of $1.00 per share (which was not less than management's
determination of the fair market value of the underlying shares on the date of
grant). The aggregate grants under the Director Plan totaled 876,205 shares. The
options under the Director Plan all vested and became exercisable on May 6,
1995, as on such date all of the conditions to vesting were satisfied. All
options awarded pursuant to the Director Plan expire on May 6, 2000.
The Executive Long-Term Incentive Plan, as amended ("Employee Plan"),
allows for the issue of a total of 4,004,814 shares of the Company's common
stock. A total of 8,750 options may still be granted under the Employee Plan.
All of the options granted are at an exercise price, which was not less than
management's determination of the fair market value of the underlying shares at
the respective dates of grant.
The following sets forth information with respect to options issued and
outstanding:
<TABLE>
<CAPTION>
Average option Range of
Shares price per share Option Prices
------------ --------------- -------------
<S> <C> <C> <C>
Options outstanding at January 31, 1998 2,466,637 $ 2.87 $1.00-13.44
Options exercised (279,041) (1.00) 1.00
Options withheld for taxes (83,075) (1.00) 1.00
------------ ------------ ------------
Options outstanding at April 30, 1998 (1,954,521 exercisable) 2,104,521 3.18 1.00-13.44
Options issued 100,000 23.13 23.00-23.25
Options exercised (37,600) (5.39) 1.00-7.75
Options withheld for taxes (7,400) (1.63) 1.00-5.25
------------ ------------ ------------
Options outstanding at July 31, 1998 (1,909,521 exercisable) 2,159,521 4.07 1.00-23.25
Options issued 30,000 22.50 22.50
Options exercised (141,800) (2.10) 1.00-10.25
Options withheld for taxes (2,900) (10.25) 1.00-10.25
------------ ------------ ------------
Options outstanding at October 31, 1998 (1,814,821 exercisable) 2,044,821 $ 4.70 $1.00-23.25
============ ============ ============
</TABLE>
Options withheld for taxes are options, which are withheld by the Company,
upon exercise by the grantee, to satisfy the grantee's withholding tax
liability. The options withheld cannot be reissued.
A non-employee director has stock warrants currently exercisable to
purchase 1,145,769 shares of Common Stock at approximately $2.01 per share.
<PAGE> 10
Page 10
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF THE OPERATIONS AND
FINANCIAL CONDITION
Results of Operations
Three and Nine Month Periods Ended October 31, 1998 (Fiscal 1999) Compared to
Three and Nine Month Periods Ended October 31, 1997 (Fiscal 1998).
Revenue. Revenue for the three months ended October 31, 1998 increased 11.9% to
$120.5 million compared with $107.7 million for the comparable period in fiscal
1998. Revenue for the nine months ended October 31, 1998 increased 17.6% to
$388.3 million compared with $330.1 million for the comparable period in fiscal
1998.The revenue increase for both periods was primarily attributable to sales
of equipment to the beverage market and sale of equipment packages for a major
customer's premium dessert program. The impact of the premium dessert program
was a larger factor in the nine month period than the most recent quarter. The
increase in sales for the nine month period also reflect the August 1997
acquisition of Gamko which had $24.3 of revenue in the first nine months of
fiscal 1999 as compared to $6.3 million for the period from its acquisition
until October 31, 1997. For the third quarter, sales of products for use outside
the U.S. increased 6.2% from the prior year period, due to increased sales to
Latin America and the Caribbean region, partially offset by lower sales to Asia.
For the first nine months of fiscal 1999, revenue from sales of products for use
outside the United States was 29.7% of revenue as compared with 31.6% for the
same period in fiscal 1998.
Gross Margin. Gross margin for the three months ended October 31, 1998 increased
12.4% to $37.3 million, compared with $33.2 million for the comparable period in
fiscal 1998. As a percent of revenue, gross margin increased from 30.8% of
revenue for the three month period ended October 31, 1997 to 30.9% of revenue in
the three month period ended October 31, 1998. Gross margin for the nine months
ended October 31, 1998 increased 20.9% to $121.9 million, compared with $100.8
million for the comparable period in fiscal 1998. As a percent of revenue, gross
margin increased from 30.5% of revenue for the nine month period ended October
31, 1997 to 31.4% of revenue in the nine month period ended October 31, 1998.
The increase in gross margin percentage for the three and nine month periods
ended October 31, 1998 was principally a result of fixed expenses being spread
over a larger sales base, improved manufacturing performance, and the impact of
Gamko.
Selling, General and Administrative Expenses. Selling, general and
administrative ("SG&A") expense for the three months ended October 31, 1998
increased 12.5% to $20.2 million. As a percent of revenue, SG&A was 16.8% for
the three months ended October 31, 1998 compared to 16.7% for the same period in
fiscal 1998. SG&A expense for the nine months ended October 31, 1998 increased
21.5% to $63.5 million. As a percent of revenue, SG&A was 16.4% for the nine
months ended October 31, 1998 compared to 15.8% for the comparable period in
fiscal 1998. The higher expenses reflect the inclusion of Gamko as well as
higher medical and casualty insurance expense experience and increased selling
and research and development expenses for the nine months ended October 31,
1998. The increased insurance expenses amounted to $0.7 million for the three
months ended October 31, 1998.
Interest Expense. Interest expense for the three months ended October 31, 1998
decreased 10.0% to $3.6 million compared with the same period in fiscal 1998.
Interest expense for the nine months ended October 31, 1998 decreased 2.4% to
$11.7 million compared with the same period in fiscal 1998. The Company acquired
$31.4 million of its outstanding senior subordinated notes in September 1998.
The Company redeemed the remainder of the outstanding notes on December 1, 1998.
<PAGE> 11
Page 11
The following table sets forth selected operating data as a percentage
of Company net revenue:
<TABLE>
<CAPTION>
Three months ended Nine months ended
October 31, October 31,
1997 (%) 1998 (%) 1997 (%) 1998 (%)
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Beverage-Air 40.2 48.4 43.3 47.0
Taylor 36.7 29.8 38.7 32.9
Wells/Bloomfield 14.0 12.2 13.1 11.1
Specialty Equipment International (Gamko) 5.8 6.6 1.9 6.2
World Dryer 3.3 3.0 3.0 2.8
---------- ---------- ---------- ----------
Net revenue 100.0 100.0 100.0 100.0
Gross margin 30.8 30.9 30.5 31.4
Selling, general and administrative expenses 16.7 16.8 15.8 16.4
---------- ---------- ---------- ----------
Earnings from operations 14.1 14.1 14.7 15.0
Interest expense, net (3.7) (3.0) (3.6) (3.0)
Income taxes (3.7) (3.9) (4.0) (4.3)
Minority interest -- -- -- --
---------- ---------- ---------- ----------
Net earnings before extraordinary item 6.7 7.2 7.1 7.7
========== ========== ========== ==========
</TABLE>
Liquidity and Capital Resources
Net cash flows provided by operations were $45.3 million for the nine
months ended October 31, 1998 compared with $49.4 million for the nine months
ended October 31, 1997. The decrease is primarily the result of an increase in
accounts receivable and inventory compared to the prior year. See -- "Results of
Operations -- Revenue."
Net cash used in investing activities amounted to $4.4 million for the
nine months ended October 31, 1998 compared with $23.9 million for the nine
months ended October 31, 1997. The prior year includes $21.5 million principally
related to the acquisition of Gamko. Through the first nine months of fiscal
1999, total capital expenditures have been $5.0 million. The Company anticipates
that capital expenditures for fiscal 1999 will be approximately $7.5 million.
The Company's capital spending for the balance of fiscal 1999 is expected to be
primarily related to the acquisition, installation, improvement and equipping of
its Beverage-Air and Taylor production facilities.
Net cash used in financing activities was $35.7 million for the nine
months ended October 31, 1998. This amount included $31.4 million of the
Company's outstanding senior subordinated notes in September of 1998. The
Company reported the premium paid for the notes as an extraordinary item, net of
taxes.
On September 16, 1997 the Company announced a plan to purchase $10
million of its common stock (up to 600,000 shares) in the open market and in
private transactions. On August 6, 1998 the Company completed the stock purchase
plan. In total, the Company purchased 567,364 shares at an average price of
$17.62 per share.
<PAGE> 12
Page 12
As of October 31, 1998, the Company had net working capital of $51.3
million. The Company's average operating working capital (defined as average
monthly gross accounts receivable and net inventory less accounts payable) as a
percentage of sales declined from 21% during fiscal year 1998 to 20% for the
nine months ended October 31, 1998. The Company's earnings from operations were
sufficient to cover fixed charges for the three and nine months ended October
31, 1998.
As of October 31, 1998, the Company had no borrowings under the
Revolving Credit Facility of its Bank Credit Agreement. However, it had
outstanding letters of credit in the amount of $10.0 million, including $6.5
million of letters of credit which guarantee the Industrial Project Revenue
Bonds (referenced in note 6 to the financial statements included as item 1
hereto). Under the Revolving Credit Facility, the Company had $45.0 million
available for additional borrowings. In addition, the Company had cash and cash
equivalents of $45.0 million as of October 31, 1998.
The Company met each of the financial covenants at October 31, 1998
under the Bank Credit Agreement.
Effective December 1, 1998 the Company entered into a new agreement
with certain banks to provide a $200 million, unsecured five-year revolving
credit facility ("Credit Agreement"). Interest rates on the facility are
calculated based on a pricing grid and currently average LIBOR plus 0.875%.
Pursuant to the Credit Agreement the Company must meet two quarterly financial
covenants, an interest coverage ratio and a total funded debt to cash flow
ratio. The proceeds from the Credit Agreement were used to refinance the
Company's existing indebtedness, including $117.6 million of remaining
outstanding Notes, which were called on December 1, 1998 at a price equal to
105.7% of the outstanding principal amount, and $18 million of other long-term
debt.
Management believes that the Credit Agreement and the other sources of
capital described above, with internally generated funds, will be adequate to
meet the Company's anticipated capital and cash requirements for at least the
next twelve months, including debt service and corporate income taxes.
Impact of Inflation
Management does not believe that inflation has had a material impact on
the Company's operations during the first nine months of fiscal 1999. Management
believes that the Company may face increasing costs during the balance of the
fiscal year as a result of inflation which the Company may not fully be able to
offset with increased productivity or pass on to its customers due to
competitive factors within the industry.
Year 2000
The Year 2000 issue is the result of computer programs being written
using two digits rather than four to define the applicable year. These programs
treat years as occurring between 1900 and the end of 1999 and do not
self-convert to reflect the upcoming change of the century. If not corrected
applications could fail or create erroneous results by or at the Year 2000.
In 1996, each of the Company's divisions began their efforts to make
the Company Year 2000 compliant. This program encompasses information systems,
manufacturing equipment, facilities systems, the Company's products and the
readiness of the Company's suppliers, distributors and customers. The Company's
objective is to be Year 2000 compliant on or before January 31, 1999.
The Company has tested and analyzed its products to determine exposure
to contingencies related to the Year 2000. This analysis revealed that the
Company's products raise limited Year 2000 issues, and that such issues should
be able to be addressed without a material impact upon the Company and
operating results.
The Company has substantially completed its analysis of its
information systems, and has begun the process of converting its information
systems. As of October 31, 1998, the Year 2000 conversion project of the
Company's information systems is more than 75% complete, with two of its
principal locations now operating under Year 2000 compliant software. It is
currently anticipated that all of the Company's operations will have converted
to Year 2000 compliant software by January 31, 1999. Similarly, the Company has
reviewed the Year 2000 status of its machinery and equipment and has
implemented the necessary system changes.
The Company believes that its greatest exposure regarding the Year 2000
issue is associated with the ability of its principal vendors, suppliers,
distributors and customers to become Year 2000 compliant. In response to this
concern, the Company is surveying and monitoring the Year 2000 compliance status
of its major vendors, suppliers, distributors and customers. However, the
Company can make no assurance that these third parties will become Year 2000
compliant, and accordingly, the Company plans to develop contingency plans in
early 1999 to the extent that it determines that any of its major vendors,
suppliers, distributors and customers are expected to encounter significant Year
2000 related problems. However, if a significant number of key third party
relationships do not promptly become Year 2000 compliant, their non-compliance
could have a material adverse effect on the Company's financial position or
results of operations. The exact magnitude of any of these effects is not
currently estimable.
Euro Currency
The Company derived approximately 11% of its revenue in fiscal 1998
from its operations in Europe. Historically, transactions in Europe have been
denominated primarily in U.S. currency, however transactions by the Company's
recently acquired Gamko subsidiary are denominated in a variety of European
currencies.
On January 1, 1999, eleven of the fifteen member countries of the
European Union are scheduled to adopt the Euro as their common legal currency.
Following the introduction of the Euro, the local currencies are scheduled to
remain legal tender in the participating countries until January 1, 2002.
During this transition period, goods and services may be paid for using either
the Euro or the participating country's local currency. Thereafter, the local
currencies will be canceled and the Euro currency will be used for all
transactions between the eleven participating members of the European Union.
The Euro conversion raises strategic as well as operational issues.
The conversion is expected to result in a number of changes, including the
stimulation of cross-border competition by creating cross-border price
transparency. The Company is evaluating the implications of the Euro conversion
and is uncertain as to the potential impact on its operations.
<PAGE> 13
Page 13
Safe Harbor for Forward-Looking Statements Under the Securities Litigation
Reform Act of 1995
Except for historical information contained herein, this Quarterly
Report to Stockholders contains forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. These statements are
subject to certain risks and uncertainties that could cause actual results to
differ materially from those anticipated and discussed herein. These factors
include: general economic conditions and their impact on the growth of the quick
service restaurant and soft drink bottler industries, the Company's dependence
on a major customer and key management personnel, the effects of competition,
the demands relating to further overseas expansion, the significance of the
Company's outstanding indebtedness and other factors detailed elsewhere from
time to time in the Company's filings with the Securities and Exchange
Commission.
Item 3. Quantitative and Qualitative Disclosure About Market Risk
The disclosure requirements pursuant to Item 305 of Regulation S-K are
not yet effective for the Company. Such disclosures will be included in the
Company's filing commencing with its Annual Report on Form 10-K for the fiscal
year ending January 31, 1999.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
See note 7 of "Notes to Unaudited Consolidated Financial Statements"
included in Part I. Item 1. of this Form 10-Q.
Item 4. Submissions of Matters to a Vote of Security Holders
There were no matters submitted to a vote of stockholders for the
quarter ended October 31, 1998.
Item 6. Exhibits and Reports on Form 8-K
1. Exhibits
3.1 Second Amended and Restated Credit Agreement, dated as of
November 24, 1998, among Specialty Equipment Companies, Inc.
and Specialty Equipment Manufacturing Corporation, as
Borrowers, and Bank of America National Trust and Savings
Association, as agent.
27.1 Financial Data Schedule
2. Reports on Form 8-K.
None.
<PAGE> 14
Page 14
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Specialty Equipment Companies, Inc.
(Registrant)
Date: December 14, 1998 /s/ Jeffrey P. Rhodenbaugh
------------------- ---------------------------
Jeffrey P. Rhodenbaugh, Chief Executive Officer
(Principal Executive Officer)
Date: December 14, 1998 /s/ Donald K. McKay
------------------- ---------------------------
Donald K. McKay, Chief Financial Officer
(Principal Financial and Accounting Officer)
<PAGE> 15
Page 15
Exhibit Index
<TABLE>
<CAPTION>
Exhibit
No. Description
<S> <C>
3.1 Second Amended and Restated Credit Agreement, dated as of November
24, 1998, among Specialty Equipment Companies, Inc. and Specialty
Equipment Manufacturing Corporation, as Borrowers, and Bank of
America National Trust and Savings Association, as agent.
27.1 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 3.1
================================================================================
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF NOVEMBER 24, 1998
AMONG
SPECIALTY EQUIPMENT COMPANIES, INC.
AND
SPECIALTY EQUIPMENT MANUFACTURING CORPORATION,
AS BORROWERS,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
AS AGENT,
THE FIRST NATIONAL BANK OF CHICAGO,
AS DOCUMENTATION AGENT,
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
NATIONSBANC MONTGOMERY SECURITIES LLC
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
<S> <C> <C>
ARTICLE 1 DEFINITIONS.....................................................................................1
1.1 Certain Defined Terms...........................................................................1
1.2 Other Interpretive Provisions..................................................................21
1.3 Accounting Principles..........................................................................22
ARTICLE 2 THE CREDITS....................................................................................22
2.1 Amounts and Terms of Commitments...............................................................22
2.2 Loan Accounts..................................................................................22
2.3 Procedure for Borrowing........................................................................23
2.4 Conversion and Continuation Elections..........................................................24
2.5 Voluntary Termination or Reduction of Commitments..............................................25
2.6 Optional Prepayments...........................................................................25
2.7 Repayment......................................................................................26
2.8 Interest.......................................................................................26
2.9 Fees...........................................................................................27
(a) Arrangement, Agency Fees..............................................................27
(b) Upfront Fees..........................................................................27
(c) Commitment Fee........................................................................27
(d) L/C Fees..............................................................................27
2.10 Computation of Fees and Interest...............................................................28
2.11 Payments by Borrowers..........................................................................28
2.12 Payments by the Lenders to the Agent...........................................................29
2.13 Sharing of Payments, Etc.......................................................................29
2.14 Extension of Scheduled Termination Date: Substitution of Lenders...............................30
2.15 Optional Increase in Commitments...............................................................31
2.16 Swing Line Commitment..........................................................................32
2.17 Borrowing Procedures for Swing Line Loans......................................................32
2.18 Prepayment or Refunding of Swing Line Loans....................................................32
2.19 Participations in Swing Line Loans.............................................................33
2.20 Participation Obligations Unconditional........................................................33
2.21 Conditions to Swing Line Loans.................................................................34
2.22 Appointment of Borrower Representative.........................................................34
ARTICLE 3 THE LETTERS OF CREDIT..........................................................................34
3.1 The Letter of Credit Subfacility...............................................................34
3.2 Issuance, Amendment and Renewal of Letters of Credit...........................................36
3.3 Risk Participations, Drawings and Reimbursements...............................................38
3.4 Repayment of Participations....................................................................40
3.5 Role of the Issuing Lender.....................................................................40
3.6 Obligations Absolute...........................................................................41
3.7 Cash Collateral Pledge.........................................................................42
3.8 Uniform Customs and Practice...................................................................42
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE 4 TAXES, YIELD PROTECTION AND ILLEGALITY.........................................................42
4.1 Taxes..........................................................................................42
4.2 Illegality.....................................................................................44
4.3 Increased Costs and Reduction of Return........................................................44
4.4 Funding Losses.................................................................................45
4.5 Inability to Determine Rates...................................................................46
4.6 Reserves on Offshore Rate Loans................................................................46
4.7 Certificates of Lenders........................................................................47
4.8 Substitution of Lenders........................................................................47
4.9 Survival.......................................................................................47
ARTICLE 5 CONDITIONS PRECEDENT...........................................................................47
5.1 Conditions of Initial Loans....................................................................47
(a) Credit Agreement and Notes............................................................47
(b) Resolutions; Incumbency...............................................................47
(c) Organization Documents; Good Standing.................................................48
(d) Legal Opinion.........................................................................48
(e) Payment of Fees.......................................................................48
(f) Certificate...........................................................................48
(g) Other Documents.......................................................................48
5.2 Conditions to All Loans........................................................................49
(a) Notice; Application...................................................................49
(b) Continuation of Representations and Warranties........................................49
(c) No Existing Default...................................................................49
ARTICLE 6 REPRESENTATIONS AND WARRANTIES.................................................................49
6.1 Corporate Existence and Power..................................................................49
6.2 Corporate Authorization; No Contravention......................................................50
6.3 Governmental Authorization.....................................................................50
6.4 Binding Effect.................................................................................50
6.5 Litigation.....................................................................................50
6.6 No Default.....................................................................................51
6.7 ERISA Compliance...............................................................................51
6.8 Use of Proceeds; Margin Regulations............................................................52
6.9 Title to Properties............................................................................52
6.10 Taxes..........................................................................................52
6.11 Financial Condition............................................................................52
6.12 Environmental Matters..........................................................................52
6.13 Regulated Entities.............................................................................53
6.14 No Burdensome Restrictions.....................................................................53
6.15 Copyrights, Patents, Trademarks and Licenses, etc..............................................53
6.16 Subsidiaries...................................................................................53
6.17 Insurance......................................................................................53
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
6.18 Swap Obligations...............................................................................53
6.19 Full Disclosure................................................................................53
6.20 Subordinated Debt..............................................................................54
6.21 Transfer of Operating Assets...................................................................54
6.22 Year 2000 Compliance...........................................................................54
ARTICLE 7 AFFIRMATIVE COVENANTS..........................................................................54
7.1 Financial Statements...........................................................................54
7.2 Certificates; Other Information................................................................55
7.3 Notices........................................................................................55
7.4 Preservation of Corporate Existence, Etc.......................................................56
7.5 Maintenance of Property........................................................................57
7.6 Insurance......................................................................................57
7.7 Payment of Obligations.........................................................................57
7.8 Compliance with Laws...........................................................................58
7.9 Compliance with ERISA..........................................................................58
7.10 Inspection of Property and Books and Records...................................................58
7.11 Environmental Laws.............................................................................58
7.12 Use of Proceeds................................................................................58
ARTICLE 8 NEGATIVE COVENANTS.............................................................................58
8.1 Limitation on Liens............................................................................59
8.2 Negative Pledge Agreements.....................................................................60
8.3 Disposition of Assets..........................................................................60
8.4 Consolidations and Mergers.....................................................................61
8.5 Loans and Investments..........................................................................61
8.6 Limitation on Indebtedness.....................................................................62
8.7 Transactions with Affiliates...................................................................63
8.8 Use of Proceeds................................................................................63
8.9 Contingent Obligations.........................................................................63
8.10 Joint Ventures.................................................................................63
8.11 Lease Obligations..............................................................................63
8.12 Restricted Payments............................................................................64
8.13 ERISA..........................................................................................64
8.14 Change in Business.............................................................................65
8.15 Accounting Changes.............................................................................65
8.16 Amendment of Indenture.........................................................................65
8.17 Consolidated Funded Debt to Cash Flow Ratio....................................................65
8.18 Consolidated Interest Coverage Ratio...........................................................65
ARTICLE 9 EVENTS OF DEFAULT..............................................................................65
9.1 Event of Default...............................................................................65
(a) Non-Payment...........................................................................65
(b) Representation or Warranty............................................................65
(c) Specific Defaults.....................................................................65
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
(d) Other Defaults........................................................................65
(e) Cross-Default.........................................................................66
(f) Insolvency; Voluntary Proceedings.....................................................66
(g) Involuntary Proceedings...............................................................66
(h) ERISA.................................................................................66
(i) Monetary Judgments....................................................................67
(j) Non-Monetary Judgments................................................................67
(k) Change of Control.....................................................................67
(l) Loss of Licenses......................................................................67
(m) Invalidity of Subordination Provisions................................................67
9.2 Remedies.......................................................................................67
9.3 Rights Not Exclusive...........................................................................68
ARTICLE 10 THE AGENT......................................................................................68
10.1 Appointment and Authorization; "Agent".........................................................68
10.2 Delegation of Duties...........................................................................69
10.3 Liability of Agent.............................................................................69
10.4 Reliance by Agent..............................................................................70
10.5 Notice of Default..............................................................................70
10.6 Credit Decision................................................................................70
10.7 Indemnification of Agent.......................................................................71
10.8 Agent in Individual Capacity...................................................................71
10.9 Successor Agent................................................................................71
10.10 Withholding Tax................................................................................72
10.11 Documentation Agent............................................................................73
10.12 Syndication Agent..............................................................................73
ARTICLE 11 MISCELLANEOUS..................................................................................74
11.1 Amendment and Restatement; Amendments and Waivers..............................................74
11.2 Notices........................................................................................75
11.3 No Waiver; Cumulative Remedies.................................................................76
11.4 Costs and Expenses.............................................................................76
11.5 Borrowers' Indemnification.....................................................................76
11.6 Payments Set Aside.............................................................................77
11.7 Successors and Assigns.........................................................................77
11.8 Assignments, Participations, etc...............................................................77
11.9 Confidentiality................................................................................79
11.10 Set-off........................................................................................79
11.11 Automatic Debits of Fees.......................................................................80
11.12 Notification of Addresses, Lending Offices, Etc................................................80
11.13 Counterparts...................................................................................80
11.14 Severability...................................................................................80
11.15 No Third Parties Benefited.....................................................................80
11.16 Designated Senior Indebtedness.................................................................80
11.17 Governing Law and Jurisdiction.................................................................80
11.18 Waiver of Jury Trial...........................................................................81
11.19 Joint and Several Liability....................................................................81
11.20 Entire Agreement...............................................................................81
</TABLE>
iv
<PAGE> 6
SCHEDULES AND EXHIBITS
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule 2.1 Commitments
Schedule 3.1 Outstanding Letters of Credit
Schedule 6.5 Litigation
Schedule 6.7 ERISA
Schedule 6.11 Permitted Liabilities
Schedule 6.12 Environmental Matters
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 6.17 Insurance Matters
Schedule 8.1 Permitted Liens
Schedule 8.6 Permitted Indebtedness
Schedule 8.7 Transactions With Affiliates
Schedule 8.9 Contingent Obligations
Schedule 11.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Notice of Swing Line Loan
Exhibit D Form of Compliance Certificate
Exhibit E Form of Legal Opinion of Borrowers' Counsel
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Promissory Note
Exhibit H Form of Request for Extension of Termination Date
Exhibit I Form of Request for Increase in Commitments
</TABLE>
v
<PAGE> 7
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is
entered into as of November 24, 1998, among SPECIALTY EQUIPMENT COMPANIES, INC.,
a Delaware corporation ("Holding Co."), and its Wholly-Owned Subsidiary,
SPECIALTY EQUIPMENT MANUFACTURING CORPORATION, a Delaware corporation
("Operating Co.") (Holding Co. and Operating Co. sometimes collectively referred
to herein as "Borrowers", and individually as "Borrower"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Lenders", and individually, a "Lender"), and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as agent for the Lenders.
WHEREAS, Borrowers, the financial institutions named therein, and the
Agent entered into that certain Amended and Restated Credit Agreement, dated as
of January 31, 1998, (the "Existing Credit Agreement");
WHEREAS, Borrowers desire to increase the credit facility provided
under the Existing Credit Agreement and to make certain other amendments to the
terms and provisions of the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, and of any loans or extensions of credit
heretofore, now or hereafter made to or for the benefit of Borrowers by the
Lenders, the parties hereto hereby amend and restate the Existing Credit
Agreement as follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms have the following
meanings:
"ACQUISITION" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary) provided that Borrower or the Subsidiary is the surviving
entity.
<PAGE> 8
"AFFILIATE" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"AGENT" means BA in its capacity as agent for the Lenders
hereunder, and any successor agent arising under Section 10.9.
"AGENT-RELATED PERSONS" means BA and any successor agent
arising under Section 10.9, together with their respective Affiliates,
and the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"AGENT'S PAYMENT OFFICE" means the address for payments set
forth on Schedule 11.2 or such other address as the Agent may from time
to time specify.
"AGREEMENT" means this Second Amended and Restated Credit
Agreement.
"APPLICABLE COMMITMENT FEE PERCENTAGE" shall mean, for any
Fiscal Quarter, the percentage set forth below opposite the
Consolidated Funded Debt to Cash Flow Ratio as of the last day of the
preceding Fiscal Quarter:
<TABLE>
<CAPTION>
------------------------------------------------------------------------ --------------------------------
Consolidated Funded Debt Applicable Commitment
to Cash Flow Ratio Fee Percentage
------------------------------------------------------------------------ --------------------------------
<S> <C>
equal to or greater than 3.0 to 1.0 0.300%
------------------------------------------------------------------------ --------------------------------
less than 3.0 to 1.0, 0.300%
but equal to or greater than 2.5 to 1.0
------------------------------------------------------------------------ --------------------------------
less than 2.5 to 1.0 0.250%
but equal to or greater than 2.0 to 1.0
less than 2.0 to 1.0 0.200%
but equal to or greater than 1.5 to 1.0
less than 1.5 to 1.0 0.175%
------------------------------------------------------------------------ --------------------------------
</TABLE>
For purposes of the foregoing, the Applicable Commitment Fee Percentage
at any time shall be determined by reference to the Consolidated Funded
Debt to Cash Flow Ratio as of the last day of the most recently ended
Fiscal Quarter and any change in the Applicable Commitment Fee
Percentage shall become effective for all purposes five Business Days
following receipt by Agent of the certificate and applicable financial
statements described in Sections 7.1(a), 7.1(b) and 7.2(b).
Notwithstanding the foregoing, at any time during which
2
<PAGE> 9
Borrowers have failed to deliver the certificate and applicable
financial statements described in Sections 7.1(a), 7.1(b) and 7.2(b)
with respect to a Fiscal Quarter in accordance with the provisions
thereof, for more than ten Business Days after such certificate and
the applicable financial statements were due, the Consolidated Funded
Debt to Consolidated Cash Flow Ratio shall be deemed, solely for
purposes of this definition, to be equal to or greater than 3.0 to 1.0
until such certificate and the applicable financial statements are
delivered.
"APPLICABLE L/C FEE PERCENTAGE" shall mean, for any Fiscal
Quarter, the percentage set forth below opposite the Consolidated
Funded Debt to Cash Flow Ratio as of the last day of the preceding
Fiscal Quarter:
<TABLE>
<CAPTION>
-------------------------------------------------------------------------- ------------------------------
Consolidated Funded Debt Applicable L/C
to Cash Flow Ratio Fee Percentage
-------------------------------------------------------------------------- ------------------------------
<S> <C>
equal to or greater than 3.0 to 1.0 1.500%
-------------------------------------------------------------------------- ------------------------------
less than 3.0 to 1.0, 1.250%
but equal to or greater than 2.5 to 1.0
-------------------------------------------------------------------------- ------------------------------
less than 2.5 to 1.0 1.000%
but equal to or greater than 2.0 to 1.0
less than 2.0 to 1.0 0.875%
but equal to or greater than 1.5 to 1.0
less than 1.5 to 1.0 0.750%
-------------------------------------------------------------------------- ------------------------------
</TABLE>
For purposes of the foregoing, the Applicable L/C Fee Percentage at any
time shall be determined by reference to the Consolidated Funded Debt
to Cash Flow Ratio as of the last day of the most recently ended Fiscal
Quarter and any change in the Applicable L/C Fee Percentage shall
become effective for all purposes five Business Days following receipt
by Agent of the certificate and applicable financial statements
described in Sections 7.1(a), 7.1(b) and 7.2(b). Notwithstanding the
foregoing, at any time during which Borrowers have failed to deliver
the certificate and applicable financial statements described in
Sections 7.1(a), 7.1(b) and 7.2((b) with respect to a Fiscal Quarter in
accordance with the provisions thereof, for more than ten Business Days
after such certificate and the applicable financial statements were
due, the Consolidated Funded Debt to Cash Flow Ratio shall be deemed,
solely for purposes of this definition, to be equal to or greater than
3.0 to 1.0 until such certificate and the applicable financial
statements are delivered.
"APPLICABLE MARGIN" shall mean, for any Fiscal Quarter, the
margin set forth below opposite the Consolidated Funded Debt to Cash
Flow Ratio as of the last day of the preceding Fiscal Quarter:
3
<PAGE> 10
<TABLE>
<CAPTION>
-------------------------------------------------------------------------- -----------------------------
Consolidated Funded Debt Applicable Margin
to Cash Flow Ratio
-------------------------------------------------------------------------- -----------------------------
<S> <C>
equal to or greater than 3.0 to 1.0 1.500%
-------------------------------------------------------------------------- -----------------------------
less than 3.0 to 1.0, 1.250%
but equal to or greater than 2.5 to 1.0
-------------------------------------------------------------------------- -----------------------------
less than 2.5 to 1.0 1.000%
but equal to or greater than 2.0 to 1.0
less than 2.0 to 1.0 0.875%
but equal to or greater than 1.5 to 1.0
less than 1.5 to 1.0 0.750%
-------------------------------------------------------------------------- -----------------------------
</TABLE>
For purposes of the foregoing, the Applicable Margin at any time shall
be determined by reference to the Consolidated Funded Debt to Cash Flow
Ratio as of the last day of the most recently ended Fiscal Quarter and
any change in the Applicable Margin shall become effective for all
purposes five Business Days following receipt by Agent of the
certificate and applicable financial statements described in Sections
7.1(a), 7.1(b) and 7.2(b). Notwithstanding the foregoing, at any time
during which Borrowers have failed to deliver the certificate and
applicable financial statements described in Sections 7.1(a), 7.1(b)
and 7.2(b) with respect to a Fiscal Quarter in accordance with the
provisions thereof, for more than ten Business Days after such
certificate and the applicable financial statements are due, the
Consolidated Funded Debt to Cash Flow Ratio shall be deemed, solely for
purposes of this definition, to be equal to or greater than 3.0 to 1.0
until such certificate and the applicable financial statements are
delivered.
"ARRANGER" means NationsBanc Montgomery Securities LLC.
"ASSIGNEE" has the meaning specified in subsection 11.8(a).
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel, the allocated
cost of internal legal services and all disbursements of internal
counsel.
"BA" means Bank of America National Trust and Savings
Association.
4
<PAGE> 11
"BANKER'S ACCEPTANCES" means Banker's Acceptances issued by
the Issuing Lender upon acceptance by the Issuing Lender of time drafts
presented pursuant to Letters of Credit.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ?101, et seq.).
"BASE RATE" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BA in
San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BA based upon various factors including BA's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.)
Any change in the reference rate announced by BA shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the
Base Rate.
"BORROWER REPRESENTATIVE" means Holding Co.
"BORROWING" means a borrowing hereunder consisting of Loans of
the same Type made to Borrowers on the same day by one or more Lenders
under Article 2, and, other than in the case of Base Rate Loans, having
the same Interest Period.
"BORROWING DATE" means any date on which a Borrowing occurs
under Section 2.3 or a Swing Line Loan is made under Section 2.17.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial lenders in Chicago, Illinois, are
authorized or required by law to close and, if the applicable Business
Day relates to any Offshore Rate Loan, means such a day on which
dealings are carried on in the applicable offshore dollar interbank
market.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"CAPITAL LEASE" shall mean any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted
for as capital leases on a balance sheet of such Person under GAAP and,
for the purposes of this Agreement, the amount of such obligations at
any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
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<PAGE> 12
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean the
obligations of such Person to pay rent or other amounts under any
Capital Lease.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the Issuing Lender
and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Agent and the Majority Lenders. Derivatives of such
term shall have corresponding meanings. Cash collateral shall be
maintained in blocked accounts at BA or, with BA's consent, the Issuing
Lender.
"CD RATE" means, for any Interest Period with respect to CD
Rate Loans comprising part of the same Borrowing, the rate of interest
(rounded upward to the next 1/100th of 1%) determined as follows:
CD Rate = Certificate of Deposit Rate + Assessment
1.00 - Reserve Percentage Rate
Where:
"Assessment Rate" means, for any day of such Interest
Period, the rate determined by the Agent as equal to the
annual assessment rate in effect on such day payable to the
FDIC by a member of the Bank Insurance Fund that is classified
as adequately capitalized and within supervisory subgroup "A"
(or a comparable successor assessment risk classification
within the meaning of 12 C.F.R. ?327.3) for insuring time
deposits at offices of such member in the United States; or,
in the event that the FDIC shall at any time hereafter cease
to assess time deposits based upon such classifications or
successor classifications, equal to the maximum annual
assessment rate in effect on such day that is payable to the
FDIC by commercial banks (whether or not applicable to any
particular Lender) for insuring time deposits at offices of
such banks in the United States.
"Certificate of Deposit Rate" means the rate of
interest per annum determined by the Agent to be the
arithmetic mean (rounded upward to the next 1/100th of 1%) of
the rates notified to the Agent as the rates of interest bid
by two or more certificate of deposit dealers of recognized
standing selected by the Agent for the purchase at face value
of dollar certificates of deposit issued by major United
States banks, for a maturity comparable to such Interest
Period and in the approximate amount of the CD Rate Loans to
be made, at the time selected by the Agent on the first day of
such Interest Period.
"Reserve Percentage" means, for any day of such
Interest Period, the maximum reserve percentage (expressed as
a decimal, rounded upward to the next 1/100th of 1%), as
determined by the Agent, in effect on such day (including any
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<PAGE> 13
ordinary, marginal, emergency, supplemental, special and other
reserve percentages), prescribed by the FRB for determining
the maximum reserves to be maintained by member banks of the
Federal Reserve System with deposits exceeding $1,000,000,000
for new non-personal time deposits for a period comparable to
such Interest Period and in an amount of $100,000 or more.
The CD Rate shall be adjusted, as to all CD Rate Loans then
outstanding, automatically as of the effective date of any change in
the Assessment Rate or the Reserve Percentage.
"CD RATE LOAN" means a Loan that bears interest based on the
CD Rate.
"CHANGE OF CONTROL" means (a) the acquisition by any Person,
or two or more Persons acting in concert, including, without
limitation, any acquisition effected by means of a merger or
consolidation, of beneficial ownership (within the meaning of Rule
13d-3 of the SEC under the Exchange Act) of 50% or more of the
outstanding shares of voting stock of Holding Co., or (b) during any
period of 25 consecutive calendar months, commencing on November 1,
1996, the ceasing of those individuals (the "Continuing Directors") who
(i) were directors of Holding Co. on the first day of each such period
or (ii) subsequently became directors of Holding Co. and whose initial
election or initial nomination for election subsequent to that date was
approved by a majority of the Continuing Directors then on the board of
directors of Holding Co., to constitute a majority of the board of
directors of Holding Co.
"CLOSING DATE" means the date on which all conditions
precedent set forth in Section 5.1 are satisfied or waived by all
Lenders (or, in the case of subsection 5.1(e), waived by the Person
entitled to receive such payment).
"CODE" means the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder.
"COMMITMENT", as to each Lender, has the meaning specified in
Section 2.1.
"COMMITMENT FEE" has the meaning specified in subsection
2.9(c).
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit D.
"CONSOLIDATED CASH FLOW FROM OPERATIONS" shall mean, for any
period, Consolidated Net Income for such period plus the aggregate
amount deducted in determining such Consolidated Net Income in respect
of the following, each determined in accordance with GAAP: (i)
Consolidated Interest Expense, (ii) income taxes, (iii) depreciation,
depletion and amortization, (iv) non-cash charges for non-recurring or
extraordinary items, and (v) repurchase premiums incurred in connection
with purchases of the Senior Subordinated Notes.
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<PAGE> 14
"CONSOLIDATED FUNDED DEBT TO CASH FLOW RATIO" means the ratio
of (i) the aggregate Funded Debt of Borrowers and their Subsidiaries
computed on a consolidated basis in accordance with GAAP, to (ii) the
aggregate Consolidated Cash Flow From Operations for the four
immediately preceding Fiscal Quarters.
"CONSOLIDATED INTEREST COVERAGE RATIO" shall mean the ratio of
(i) Consolidated Cash Flow from Operations to (ii) Consolidated
Interest Expense.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period,
gross interest expense of Borrowers and their Subsidiaries computed on
a consolidated basis in accordance with GAAP, including, without
limitation, amortization of debt discounts and the portion of any
Capital Lease Obligation allocable to interest expense.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
aggregate net income (or net deficit) of Borrowers and their
Subsidiaries for such period computed on a consolidated basis in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such
primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from, or to
obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Swap Contract. The
amount of any Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable amount of
the primary obligation in respect of which such Guaranty Obligation is
made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof, and in the case of other
Contingent Obligations other than in respect of Swap Contracts, shall
be equal to the maximum reasonably anticipated liability in respect
thereof and, in the case of Contingent Obligations in respect of Swap
Contracts, shall be equal to the Swap Termination Value.
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<PAGE> 15
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" means any date on which, under
Section 2.4, Borrowers (a) convert Loans of one Type to another Type,
or (b) continue as Loans of the same Type, but with a new Interest
Period, Loans having Interest Periods expiring on such date.
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"DOLLARS", "DOLLARS" and "$" each mean lawful money of the
United States.
"EFFECTIVE AMOUNT" means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit or
Banker's Acceptances occurring on such date, any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a
result of any reimbursements of outstanding unpaid drawings under any
Letter of Credit or payments under Banker's Acceptances or any
reduction in the maximum amount available for drawing under Letters of
Credit or payment under Banker's Acceptances taking effect on such
date.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such bank
is acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of
a Person of which a Lender is a Subsidiary, or (iii) a Person of which
a Lender is a Subsidiary.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment.
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<PAGE> 16
"ENVIRONMENTAL LAWS" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Borrower within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by any Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; or
(f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
any Borrower or any ERISA Affiliate.
"EURODOLLAR RESERVE PERCENTAGE" has the meaning specified in
the definition of "Offshore Rate".
"EVENT OF DEFAULT" means any of the events or circumstances
specified in Section 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
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<PAGE> 17
"FEDERAL FUNDS RATE" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 9:00 a.m. (New York City
time) on that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Agent.
"FEE LETTER" has the meaning specified in subsection 2.9(a).
"FISCAL QUARTER" means each of the three-month periods that
end on April 30, July 31, October 31 and January 31 in each Fiscal
Year.
"FISCAL YEAR" means the twelve-month period that ends on
January 31.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"FUNDED DEBT" means, without duplication, at any date of
determination thereof, the total of (a) all Indebtedness, that has a
final maturity, or that is extendible or renewable at the option of the
obligor to a date, one year or more after the date on which such
Indebtedness is incurred, excluding all principal payments in respect
thereof required to be made within one year from the date as of which
Funded Debt is being determined, (b) all Guaranty Obligations with
respect to such Indebtedness of others, and (c) in the case of
Borrowers, the aggregate outstanding principal amount of all Borrowings
to the extent not included in clause (a) above.
"FURTHER TAXES" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including, without limitation, net income taxes and
franchise taxes), and all liabilities with respect thereto, imposed by
any jurisdiction on account of amounts payable or paid pursuant to
Section 4.1.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the
Closing Date.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
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<PAGE> 18
"GUARANTY OBLIGATION" has the meaning specified in the
definition of "Contingent Obligation".
"INDEBTEDNESS" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property); (f)
all obligations with respect to capital leases; (g) all indebtedness
referred to in clauses (a) through (f) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including
accounts and contracts rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
Indebtedness; and (h) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (g) above. For all purposes of this Agreement, the
Indebtedness of any Person shall include all recourse Indebtedness of
any partnership or joint venture or limited liability company in which
such Person is a general partner or a joint venturer or a member.
"INDEMNIFIED LIABILITIES" has the meaning specified in Section
11.5.
"INDEMNIFIED PERSON" has the meaning specified in Section
11.5.
"INDEPENDENT AUDITOR" has the meaning specified in subsection
7.1(a).
"INDENTURE" means the Indenture, dated as of December 1, 1993,
between Holding Co. and Harris Trust and Savings Bank, as Trustee, as
amended by a Supplemental Indenture, dated as of December 1, 1993,
among Holding Co., Bloomfield Industries Canada Limited and Harris
Trust and Savings Bank, as Trustee, and by a Supplemental Indenture,
dated as of January 31, 1998, among Borrowers and Harris Trust and
Savings Bank, as Trustee.
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshaling of assets for creditors,
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
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<PAGE> 19
"INTEREST PAYMENT DATE" means, as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to such
Loan and, as to any Base Rate Loan, the last Business Day of each
calendar quarter and each date such Loan is converted into another Type
of Loan, provided, however, that if any Interest Period for a CD Rate
Loan or Offshore Rate Loan exceeds 90 days or three months,
respectively, the date that falls 90 days or three months (as the case
may be) after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.
"INTEREST PERIOD" means, (a) as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three, six or twelve months thereafter as selected by Borrowers in its
Notice of Borrowing or Notice of Conversion/Continuation; and (b) as to
any CD Rate Loan, the period commencing on the Borrowing Date of such
Loan or on the Conversion/Continuation Date on which the Loan is
converted into or continued as a CD Rate Loan, and ending on the date
30, 60, 90 or 180 days thereafter, as selected by Borrowers in their
Notice of Borrowing or Notice of Conversion/Continuation.
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, 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 preceding
Business Day;
(ii) any Interest Period pertaining to an Offshore
Rate 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 the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"ISSUANCE DATE" has the meaning specified in subsection
3.1(a).
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<PAGE> 20
"ISSUE" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "issued," "issuing" and "issuance" have
corresponding meanings.
"ISSUING LENDER" means each of BA in its capacity as issuer of
one or more Letters of Credit and Banker's Acceptances pursuant to
Article 3, together with any replacement letter of credit issuer
arising under subsection 10.1(b) or Section 10.9 and (ii) any other
Lender or Affiliate of a Lender which the Agent and Borrowers have
approved in writing as an "Issuing Lender" hereunder.
"JOINT VENTURE" means a single-purpose corporation,
partnership, limited liability company, joint venture or other similar
legal arrangement (whether created by contract or conducted through a
separate legal entity) now or hereafter formed by any Borrower or any
of its Subsidiaries with another Person in order to conduct a common
venture or enterprise with such Person.
"L/C ADVANCE" means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C AMENDMENT APPLICATION" means an application form for
amendment of an outstanding Letter of Credit as shall at any time be in
use by the applicable Issuing Lender, as such Issuing Lender shall
request.
"L/C APPLICATION" means an application form for issuance of a
standby letter of credit or a commercial letter of credit, as the case
may be, as shall at any time be in use by the applicable Issuing
Lender, as such Issuing Lender shall request.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Loans under
subsection 3.3(c).
"L/C COMMITMENT" means the commitment of the Issuing Lenders
to issue, and the commitment of the Lenders severally to participate
in, Letters of Credit and Banker's Acceptances from time to time Issued
or outstanding under Section 3 in an aggregate amount not to exceed on
any date the lesser of $20,000,000 and the combined Commitments; it
being understood that the L/C Commitment is a part of the combined
Commitments rather than a separate, independent commitment.
"L/C OBLIGATIONS" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the aggregate unpaid amount of all Banker's Acceptances
outstanding at such time, plus (c) the amount of all unreimbursed
drawings under all Letters of Credit and Banker's Acceptances,
including all outstanding L/C Borrowings.
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<PAGE> 21
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications, the Banker's Acceptances
and any other document relating to any Letter of Credit, including any
of the applicable Issuing Lender's standard form documents for letter
of credit issuances.
"LC ISSUANCE FEE" shall have the meaning given such term in
subsection 2.9(d).
"LENDER" has the meaning specified in the introductory clause
hereto.
"LENDING OFFICE" means, as to any Lender, the office or
offices of such Lender specified as its "Lending Office" or "Domestic
Lending Office" or "Offshore Lending Office", as the case may be, on
Schedule 11.2, or such other office or offices as such Lender may from
time to time notify Borrowers and the Agent.
"LETTERS OF CREDIT" means letters of credit issued by an
Issuing Lender for the account of Borrowers pursuant to Article 3.
"LIEN" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease.
"LOAN" means an extension of credit by a Lender to Borrowers
under Article 2, and may be a Base Rate Loan, a CD Rate Loan, an
Offshore Rate Loan, a Swing Line Loan (each a "TYPE" of Loan) or an L/C
Borrowing.
"LOAN DOCUMENTS" means this Agreement, any Notes, the Fee
Letter and all other documents delivered to the Agent or any Lender in
connection herewith.
"MAJORITY LENDERS" means Lenders holding Pro Rata Shares
aggregating 66-2/3% or more; provided that if and so long as any Lender
fails to fund any Loan when required by Section 2.3, Section 2.18 or
Section 3.3 or a participation in a Swing Line Loan or an L/C Borrowing
pursuant to Section 2.19 or Section 3.3, as the case may be, such
Lender's Pro Rata Share shall be deemed for purposes of this definition
to be reduced by the percentage which the defaulted amount constitutes
of the combined Commitments (or, if the Commitments have terminated,
the Total Outstandings), and (i) in the case of a failure to
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<PAGE> 22
fund under Section 2.18, Section 2.19 or Section 3.3 the Pro Rata Share
of the applicable Issuing Lender or the Swing Line Lender, as the case
may be, shall be deemed for purposes of this definition to be increased
by such percentage, and (ii) in the case of a failure to fund under
Section 2.3, the Pro Rata Share of each of the other Lenders who have
not so failed shall be deemed for purposes of this definition to be
increased by the portion of such percentage which each of such other
Lenders' Commitments bears to the sum of the total Commitments,
exclusive of the Commitment of the failing Lender.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of any
Borrower or Borrowers and their Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Borrower or any Subsidiary to
perform under any Loan Document and to avoid any Event of Default; or
(c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Borrower or any Subsidiary of any
Loan Document.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, to which any Borrower or any
ERISA Affiliate makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been
obligated to make, contributions.
"NOTE" means a promissory note executed by Borrowers in favor
of a Lender pursuant to Section 2.2, in substantially the form of
Exhibit G.
"NOTICE OF BORROWING" means a notice in substantially the form
of Exhibit A.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in
substantially the form of Exhibit B.
"NOTICE OF SWING LINE LOAN" means a notice substantially in
the form of Exhibit C.
"OBLIGATIONS" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by Borrowers to any Lender, the Agent, any Issuing Lender or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
"OFFSHORE RATE" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the rate
of interest per annum (rounded upward to the next 1/16th of 1%)
determined by the Agent as follows:
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Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for
any Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward to the next 1/100th of 1%) in
effect on such day (whether or not applicable to any Lender)
under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities"); and
"LIBOR" means the rate of interest per annum
determined by the Agent to be the rate at which deposits in
U.S. Dollars for the relevant Interest Period are offered
based on information presented to the Telerate Screen as of
11:00 a.m. (London time) two (2) Business Days prior to the
commencement of such Interest Period in the approximate amount
of the requested Offshore Rate Loan and having a maturity
approximately equal to such Interest Period; provided that if
at least two such offered rates appear on the Telerate Screen
(page 3750 or any successor screen) in respect of such
Interest Period, the arithmetic mean of all such rates (as
determined by Agent) will be the rate used; provided further,
that if the Telerate System ceases to provide LIBOR
quotations, such rate shall be the rate at which dollar
deposits in the approximate amount of the requested Offshore
Rate Loan for such Interest Period would be offered by BA to
major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days prior
to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as
to all Offshore Rate Loans then outstanding as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"OFFSHORE RATE LOAN" means a Loan that bears interest based on
the Offshore Rate.
"ORGANIZATION DOCUMENTS" means (i) for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation, (ii) for any partnership or joint
venture, the partnership or joint venture agreement and any other
organizational document of such entity, (iii) for any limited liability
company, the certificate or articles of organization, the operating
agreement and any other organizational document of such limited
liability company, (iv) for any trust, the declaration
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of trust, the trust agreement and any other organization
document of such trust, and (v) for any other entity, the document or
agreement pursuant to which such entity was formed and any other
organizational document of such entity.
"OTHER TAXES" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
"PARTICIPANT" has the meaning specified in subsection 11.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"PENSION PLAN" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which any Borrower
sponsors, maintains, or to which it makes, is making, or is obligated
to make contributions, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any
time during the immediately preceding five (5) plan years.
"PERMITTED LIENS" has the meaning specified in Section 8.1.
"PERMITTED SWAP OBLIGATIONS" means all unsecured obligations
(contingent or otherwise) of Borrowers or any Subsidiary existing or
arising under Swap Contracts, provided that each of the following
criteria is satisfied: (a) such obligations are (or were) entered into
by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments or
assets held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person in conjunction with a
securities repurchase program not otherwise prohibited hereunder, and
not for purposes of speculation or taking a "market view", and (b) such
Swap Contracts do not contain (i) any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party, or (ii)
any provision creating or permitting the declaration of an event of
default, termination event or similar event upon the occurrence of an
Event of Default hereunder (other than an Event of Default under
subsection 9.1(a).
"PLAN" means an employee benefit plan (as defined in Section
3(3) of ERISA) which any Borrower sponsors or maintains or to which any
Borrower makes, is making, or is obligated to make contributions and
includes any Pension Plan.
"PLAN OF INTERNAL RESTRUCTURING" means the Plan of Internal
Restructuring adopted by the Board of Directors of Holding Co. and
approved by the stockholders of Holding Co. at the Annual Meeting of
Stockholders of Holding Co. on April 30, 1997.
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<PAGE> 25
"PRO RATA SHARE" means, as to any Lender at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Lender's Commitment divided by the
combined Commitments (or, after the Commitments have terminated, which
(i) the principal amount of such Lender's Loans plus (without
duplication) the participation of such Lender in (or in the case of an
Issuing Lender or the Swing Line Lender, the unparticipated portion of)
the Effective Amount of all L/C Obligations and the principal amount of
all Swing Line Loans constitutes of (ii) the aggregate principal amount
of all Loans and Swing Line Loans plus (without duplication) the
Effective Amount of all L/C Obligations).
"REPLACEMENT LENDER" has the meaning specified in Section 4.8.
"REPORTABLE EVENT" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer or the
president of Holding Co., or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer of
Holding Co., or any other officer having substantially the same
authority and responsibility.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SENIOR SUBORDINATED NOTES" means Holding Co.'s 11-3/8% Senior
Subordinated Notes due 2003 issued pursuant to the Indenture which are
outstanding on the Closing Date.
"SUBORDINATED DEBT" means that portion of the Indebtedness of
any Borrower and its Subsidiaries which is subordinated in a manner
satisfactory in form and substance to the Lenders as to right and time
of payment of principal and interest thereon to any and all of the
Obligations.
"SUBSIDIARY" of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of any
Borrower.
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"SURETY INSTRUMENTS" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"SWAP CONTRACT" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or bill option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option
to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"SWAP TERMINATION VALUE" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a), the amount(s) determined as the mark-to-market value(s)
for such Swap Contracts, as determined by any Borrower based upon one
or more mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may include any
Lender).
SWING LINE COMMITMENT" means the commitment of the Swing Line
Lender to make Swing Line Loans hereunder.
"SWING LINE LENDER" means BA in its capacity as swing line
lender hereunder, together with any replacement swing line lender
arising under Section 10.9.
"SWING LINE LOAN" has the meaning specified in Section 2.16.
"SWING LINE RATE" means the rate per annum quoted by BA as its
cost for obtaining overnight Federal funds on such day plus the
Applicable Margin. The Swing Line Rate for any day that is not a
Business Day shall be the Swing Line Rate for the preceding Business
Day.
"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, respectively, taxes imposed on or
measured by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender or the Agent,
as the case may be, is organized or maintains a lending office.
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"TERMINATION DATE" means the earlier to occur of:
(a) November 30, 2003 (or such later date to which
the Termination Date may be extended pursuant to Section
2.14); and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
"TOTAL OUTSTANDINGS" means the sum of the aggregate principal
amount of all outstanding Loans (whether Base Rate Loans, CD Rate
Loans, Offshore Rate Loans or Swing Line Loans) plus the Effective
Amount of all L/C Obligations.
"TYPE" has the meaning specified in the definition of "Loan."
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
"UNITED STATES" and "U.S." each means the United States of
America.
"UPFRONT FEES" has the meaning specified in subsection 2.9(b).
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which
(other than directors' qualifying shares required by law) 100% of the
capital stock of each class having ordinary voting power, and 100% of
the capital stock of every other class, in each case, at the time as of
which any determination is being made, is owned, beneficially and of
record, by any Borrower, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.2 OTHER INTERPRETIVE PROVISIONS
(a The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular provision
of this Agreement; and subsection, Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(c (i The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii The term "including" is not limiting and means
"including without limitation".
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(iii In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including".
(d Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
(f This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms.
Unless otherwise expressly provided, any reference to any action of the
Agent or the Lenders by way of consent, approval or waiver shall be
deemed modified by the phrase "in its/their sole discretion."
(g This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Agent,
Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Agent merely because of the Agent's or Lenders' involvement in their
preparation.
1.3 ACCOUNTING PRINCIPLES. Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied.
ARTICLE 2
THE CREDITS
2.1 AMOUNTS AND TERMS OF COMMITMENTS. Each Lender severally agrees, on
the terms and conditions set forth herein, to make Loans to Borrowers from time
to time on any Business Day during the period from the Closing Date to the
Termination Date, in an aggregate amount not to exceed at any time outstanding,
the amount set forth on Schedule 2.1 (such amount as the same may be reduced
under Section 2.5, increased pursuant to Section 2.15 or changed as a result of
one or more assignments under Section 11.8, such Lender's "Commitment");
provided, however, that, after giving effect to any Borrowing, the Total
Outstandings shall not at any time exceed the combined
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Commitments, and provided, further that the aggregate principal amount of the
Loan of any Lender, plus the participation of such Lender in the principal
amount of all outstanding Swing Line Loans and in the Effective Amount of all
L/C Obligations shall not exceed such Lender's Commitment. Within the limits of
each Lender's Commitment, and subject to the other terms and conditions hereof,
Borrowers may borrow under this Section 2.1, prepay under Section 2.6 and
reborrow under this Section 2.1.
2.2 LOAN ACCOUNTS. The Loans made by each Lender and the Letters of
Credit Issued by each Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or Issuing Lender, as the case may be, in
the ordinary course of business. The accounts or records maintained by the
Agent, each Issuing Lender and each Lender shall be rebuttable presumptive
evidence of the amount of the Loans made by the Lenders to Borrowers and the
Letters of Credit Issued for the account of the Borrowers, and the interest and
payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of Borrowers hereunder to pay
any amount owing with respect to the Loans or any Letter of Credit. Upon the
request of any Lender made through the Agent, the Loans made by such Lender may
be evidenced by one or more Notes, instead of or in addition to loan accounts.
2.3 PROCEDURE FOR BORROWING.
(a Each Borrowing shall be made upon Borrower Representative's
irrevocable written notice delivered to the Agent in the form of a
Notice of Borrowing (which notice must be received by the Agent prior
to 10:00 a.m. (Chicago time) (i) three Business Days prior to the
requested Borrowing Date, in the case of Offshore Rate Loans; (ii) two
Business Days prior to the requested Borrowing Date, in the case of CD
Rate Loans, and (iii) on the requested Borrowing Date, in the case of
Base Rate Loans, specifying:
(A0 the amount of the Borrowing, which shall be in an
aggregate minimum amount of $1,000,000 or any multiple of
$500,000 in excess thereof;
(B0 the requested Borrowing Date, which shall be a
Business Day;
(C0 the Type of Loans comprising the Borrowing;
provided that if the Notice of Borrowing fails to specify the
Type of Loan, the Loan shall be a Base Rate Loan; and
(D0 in the case of Offshore Rate Loans and CD Rate
Loans, the duration of the Interest Period applicable to such
Loans included in such notice. If the Notice of Borrowing
fails to specify the duration of the Interest Period for any
Borrowing comprised of CD Rate Loans or Offshore Rate Loans,
such Interest Period shall be 30 days or one month,
respectively.
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provided, however, that with respect to the Borrowing to be made on the Closing
Date, the Notice of Borrowing shall be delivered to the Agent not later than
10:00 a.m. (Chicago time) one Business Day before the Closing Date and such
Borrowing will consist of Base Rate Loans only.
(b The Agent will promptly notify each Lender of its receipt
of any Notice of Borrowing and of the amount of such Lender's Pro Rata
Share of that Borrowing.
(c Each Lender will make the amount of its Pro Rata Share of
each Borrowing available to the Agent for the account of Borrowers at
the Agent's Payment Office by 2:00 p.m. (Chicago time) on the Borrowing
Date requested by Borrower Representative in funds immediately
available to the Agent. The proceeds of all such Loans will then be
made available to Borrowers by the Agent at such office by crediting
the account of Borrowers on the books of BA (or the commercial banking
affiliate of any successor agent appointed pursuant to Section 10.9
hereof, as applicable) with the aggregate of the amounts made available
to the Agent by the Lenders and in like funds as received by the Agent.
(d After giving effect to any Borrowing, unless the Agent
shall otherwise consent, there may not be more than six different
Interest Periods in effect for all Borrowings.
2.4 CONVERSION AND CONTINUATION ELECTIONS
(a Borrower Representative may, upon irrevocable written
notice to the Agent in accordance with subsection 2.4(b):
(i elect, as of any Business Day, in the case of Base
Rate Loans, or as of the last day of the applicable Interest
Period, in the case of any other Type of Loans, to convert any
such Loans (or any part thereof in an amount not less than
$1,000,000, or that is in an integral multiple of $500,000 in
excess thereof) into Loans of any other Type; or
(ii elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not
less than $1,000,000, or that is in an integral multiple of
$500,000 in excess thereof) for another Interest Period;
provided, that if at any time the aggregate amount of CD Rate Loans or
Offshore Rate Loans in respect of any Borrowing is reduced, by payment,
prepayment, or conversion of part thereof to be less than $1,000,000,
such CD Rate Loans or Offshore Rate Loans, as the case may be, shall
automatically convert into Base Rate Loans, and on and after such date
the right of Borrowers to continue such Loans as, and convert such
Loans into, Offshore Rate Loans or CD Rate Loans, as the case may be,
shall terminate.
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(b Borrower Representative shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than
10:00 a.m. (Chicago time) at least (i) three Business Days in advance
of the Conversion/Continuation Date, if the Loans are to be converted
into or continued as Offshore Rate Loans; (ii) two Business Days in
advance of the Conversion/Continuation Date, if the Loans are to be
converted into or continued as CD Rate Loans; and (iii) on the
Conversion/Continuation Date, if the Loans are to be converted into
Base Rate Loans, specifying:
(A0 the proposed Conversion/Continuation Date;
(B0 the aggregate amount of Loans to be converted or
continued;
(C0 the Type of Loans resulting from the proposed
conversion or continuation; and
(D0 other than in the case of conversions into Base
Rate Loans, the duration of the requested Interest Period.
(c If upon the expiration of any Interest Period applicable to
CD Rate Loans or Offshore Rate Loans, Borrowers have failed to select
timely a new Interest Period to be applicable to such CD Rate Loans or
Offshore Rate Loans, as the case may be, or if any Default or Event of
Default then exists, Borrowers shall be deemed to have elected to
convert such CD Rate Loans or Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest Period.
(d The Agent will promptly notify each Lender of its receipt
of a Notice of Conversion/Continuation, or, if no timely notice is
provided by Borrower Representative, the Agent will promptly notify
each Lender of the details of any automatic conversion. All conversions
and continuations shall be made ratably according to the respective
outstanding principal amounts of the Loans with respect to which the
notice was given held by each Lender.
(e Unless the Majority Lenders otherwise consent, during the
existence of a Default or Event of Default, Borrowers may not elect to
have a Loan converted into or continued as an Offshore Rate Loan or a
CD Rate Loan.
(f After giving effect to any conversion or continuation of
Loans, unless the Agent shall otherwise consent, there may not be more
than six different Interest Periods in effect for all Borrowings.
2.5 VOLUNTARY TERMINATION OR REDUCTION COMMITMENTS. Borrowers may, upon
not less than five Business Days' prior notice to the Agent, terminate the
Commitments and this Agreement, or permanently reduce the Commitments by an
aggregate minimum amount of
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<PAGE> 32
$1,000,000 or any multiple of $500,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Loans made on the effective date
thereof, the Total Outstandings would exceed the amount of the combined
Commitments then in effect. Once reduced in accordance with this Section , the
Commitments may not be increased (except pursuant to Section 2.15). Any
reduction of the Commitments shall be applied to reduce the Commitment of each
Lender according to its Pro Rata Share. All accrued commitment fees to, but not
including the effective date of any reduction or termination of Commitments,
shall be paid on the effective date of such reduction or termination. If
Borrowers terminate the Commitments, Borrowers shall pay all accrued and unpaid
interest, fees and other amounts payable hereunder on the date of such
termination. Upon the termination of the Commitments, this Agreement shall
terminate, except for the provisions of Article 4, Section 11.5 and such other
provisions hereof which are specified as surviving the payment of the
Obligations.
2.6 OPTIONAL PREPAYMENTS. Subject to the proviso to subsection 2.4(a)
and to Section 4.4, Borrowers may, from time to time, upon irrevocable notice to
the Agent, which notice must be received by the Agent prior to 10:00 a.m.
Chicago time (i) two Business Days prior to the date of prepayment in the case
of Offshore Rate Loans or CD Rate Loans, and (ii) on the date of prepayment in
the case of Base Rate Loans, ratably prepay outstanding Loans designated by
Borrowers in whole or in part, in minimum amounts of $1,000,000 or any multiple
of $500,000 in excess thereof (or if any Base Rate Loan has been made pursuant
to subsection 2.18(b) or Section 3.3 in an aggregate amount equal to the
aggregate amount of such Base Rate Loan). Such notice of prepayment shall
specify the date and amount of such prepayment and the Loans to be prepaid. The
Agent will promptly notify each Lender of its receipt of any such notice, and of
such Lender's Pro Rata Share of such prepayment. If such notice is given by
Borrowers, Borrowers shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.4. Unless the Agent is instructed otherwise by
Borrowers in writing, any prepayments pursuant to this Section 2.6 shall be
applied first to any Base Rate Loans. Borrowers may from time to time (upon
notice and procedures stated in Section 2.3 hereof) reborrow amounts which have
been paid by Borrowers as optional prepayments.
2.7 REPAYMENT. Borrowers shall repay to the Lenders on the Termination
Date all Loans.
2.8 INTEREST
(a Each Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum
equal to (i) the Offshore Rate plus the Applicable Margin , or (ii) the
CD Rate Plus the Applicable Margin, or (iii) the Base Rate, as the case
may be (and subject to Borrowers right to convert to other Types of
Loans under Section 2.4). Each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the Swing Line Rate or such other
rate as may be agreed to from time to time by Borrowers and the Swing
Line Lender.
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(b Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any
conversion of Offshore Rate Loans under Section 2.4 and prepayment of
Loans under Section 2.6 for the portion of the Loans so converted or
prepaid and upon payment (including prepayment) in full thereof and,
during the existence of any Event of Default, interest shall be paid on
demand of the Agent at the request or with the consent of the Majority
Lenders.
(c Notwithstanding subsection (a) of this Section, while any
Event of Default exists or after acceleration, Borrowers shall pay
interest (after as well as before entry of judgment thereon to the
extent permitted by law) on the principal amount of all outstanding
Loans and other Obligations, at a rate per annum which is determined by
adding 2% per annum to the Applicable Margin then in effect for such
Loans and, in the case of Obligations not subject to an Applicable
Margin, at a rate per annum equal to the Base Rate plus 2%; provided,
however, that, on and after the expiration of any Interest Period
applicable to any Offshore Rate Loan or CD Rate Loan outstanding on the
date of occurrence of such Event of Default or acceleration, the
principal amount of such Loan shall, during the continuation of such
Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2%.
(d Anything herein to the contrary notwithstanding, the
obligations of Borrowers to any Lender hereunder shall be subject to
the limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but
only to the extent) that contracting for or receiving such payment by
such Lender would be contrary to the provisions of any law applicable
to such Lender limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Lender, and in
such event Borrowers shall pay such Lender interest at the highest rate
permitted by applicable law.
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2.9 FEES
(a ARRANGEMENT, AGENCY FEES. Holding Co. shall pay to the
Agent and the Arranger for their own accounts, such fees as are
required by the letter agreement ("Fee Letter") among Holding Co., the
Agent and the Arranger dated September 28, 1998.
(b UPFRONT FEES. On the Closing Date Holding Co. shall pay to
Agent for the benefit of Lenders such fees with respect to each
Lender's Commitment ("Upfront Fees") as separately agreed by Arranger,
Lenders and Borrowers.
(c COMMITMENT FEE. If during any calendar quarter prior to the
Termination Date (or portion of the calendar quarter for 1998 and the
calendar quarter in which the Termination Date occurs), the average
daily balance of the Revolving Loan is less than $200,000,000,
Borrowers shall pay to Agent, for the ratable benefit of the Lenders,
in addition to any interest, late charges or liquidated damages due
under this Agreement, an amount ("Commitment Fee") equal to the
quotient of (i) an amount equal to (A) the positive difference between
$200,000,000 and the average daily balance of the Loans during such
calendar quarter (or portion of the calendar quarter for 1998 and the
calendar quarter in which the Termination Date occurs), multiplied by
(B) a rate equal to the Applicable Commitment Fee Percentage divided by
(ii) four. The amount of any Commitment Fee shall be payable within
five days after determination thereof by Agent and notice to Borrowers
of the amount thereof.
(d L/C FEES. Borrowers agree to pay (i) to the Agent, for the
ratable benefit of the Lenders, a per annum fee ("L/C Issuance Fee"),
payable quarterly, in arrears, prorated for any period less than one
year based on the Issuing Lender's customary practices, (a) with
respect to the Letters of Credit which are cash collateralized in a
manner acceptable to the Issuing Lender, equal to 0.250% of the undrawn
face amount of such Letter of Credit from time to time, and (b) with
respect to all other Letters of Credit, equal to the Applicable L/C Fee
Percentage of the undrawn face amount of such Letter of Credit from
time to time, in each case calculated on the basis of the actual daily
undrawn face amount of Letters of Credit, and in any event the L/C
Issuance Fee shall not be less than $150, plus (ii) to the applicable
Issuing Lender, for such Issuing Lender's own account and not for the
account of any Lender, in addition to the L/C Issuance Fee, such
Issuing Lender's standard administrative operating fees and charges in
effect from time to time for issuing and administering any Letter of
Credit. In the event the applicable Issuing Lender consents to the
extension or renewal of the term ("Extended Term") of a Letter of
Credit pursuant to subsection 3.2(d) ("Extended Letter of Credit"),
then Borrowers shall pay an additional L/C Issuance Fee with respect to
each Extended Letter of Credit for each year or partial year the terms
of such Extended Letter of Credit extends beyond the term specified in
subsection 3.1(c). With respect to the payment of any fees or expenses
that become due hereunder, Borrowers authorize and direct the Agent, at
its option, to cause such payment to be paid when due by charging such
payment as a Base Rate Loan advance pursuant to Section 2.3 of this
Agreement.
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2.10 COMPUTATION OF FEES AND INTEREST
(a All computations of interest for Base Rate Loans when the
Base Rate is determined by BA's "reference rate" shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on
the basis of a 360-day year and actual days elapsed (which results in
more interest being paid than if computed on the basis of a 365-day
year). Interest and fees shall accrue during each period during which
interest or such fees are computed from the first day thereof to the
last day thereof.
(b Each determination of an interest rate by the Agent shall
be conclusive and binding on Borrowers and the Lenders in the absence
of manifest error. The Agent will, at the request of Borrowers or any
Lender, deliver to Borrowers or the Lender, as the case may be, a
statement showing the quotations used by the Agent in determining any
interest rate and the resulting interest rate.
2.11 PAYMENTS BY BORROWERS
(a All payments to be made by Borrowers shall be made without
set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by Borrowers shall be made to the Agent
for the account of the Lenders at the Agent's Payment Office, and shall
be made in dollars and in immediately available funds, no later than
1:00 p.m. (Chicago time) on the date specified herein. The Agent will
promptly distribute to each Lender its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Agent later than 1:00
p.m. (Chicago time) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall
continue to accrue.
(b Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other
than a Business Day, such payment shall be made on the following
Business Day, and such extension of time shall in such case be included
in the computation of interest or fees, as the case may be.
(c Unless the Agent receives notice from Borrowers prior to
the date on which any payment is due to the Lenders that Borrowers will
not make such payment in full as and when required, the Agent may
assume that Borrowers have made such payment in full to the Agent on
such date in immediately available funds and the Agent may (but shall
not be so required), in reliance upon such assumption, distribute to
each Lender on such due date an amount equal to the amount then due
such Lender. If and to the extent Borrowers have not made such payment
in full to the Agent, each Lender shall repay to the Agent on demand
such amount distributed to such Lender, together with interest thereon
at the Federal Funds Rate for each day from the date such amount is
distributed to such Lender until the date repaid.
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2.12 PAYMENTS BY THE LENDERS TO THE AGENT
(a Unless the Agent receives notice from a Lender on or prior
to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least one Business Day prior to the date of such Borrowing,
that such Lender will not make available as and when required hereunder
to the Agent for the account of Borrowers the amount of that Lender's
Pro Rata Share of the Borrowing, the Agent may assume that each Lender
has made such amount available to the Agent in immediately available
funds on the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to
Borrowers on such date a corresponding amount. If and to the extent any
Lender shall not have made its full amount available to the Agent in
immediately available funds and the Agent in such circumstances has
made available to Borrowers such amount, that Lender shall on the
Business Day following such Borrowing Date make such amount available
to the Agent, together with interest at the Federal Funds Rate for each
day during such period. A notice of the Agent submitted to any Lender
with respect to amounts owing under this subsection (a) shall be
conclusive, absent manifest error. If such amount is so made available,
such payment to the Agent shall constitute such Lender's Loan on the
date of Borrowing for all purposes of this Agreement. If such amount is
not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify Borrowers of such failure to fund
and, upon demand by the Agent, Borrowers shall pay such amount to the
Agent for the Agent's account, together with interest thereon for each
day elapsed since the date of such Borrowing, at a rate per annum equal
to the interest rate applicable at the time to the Loans comprising
such Borrowing.
(b The failure of any Lender to make any Loan on any Borrowing
Date shall not relieve any other Lender of any obligation hereunder to
make a Loan on such Borrowing Date, but no Lender shall be responsible
for the failure of any other Lender to make the Loan to be made by such
other Lender on any Borrowing Date.
2.13 SHARING OF PAYMENTS, ETC. If, other than as expressly provided
elsewhere herein (including in Section 2.15 with respect to any prepayment made
to give effect to a non-pro-rata subscription for an increase in the Commitments
or with respect to payments of principal of and interest on Swing Line Loans),
any Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of principal of or interest on any Loan, or any other amount payable
hereunder in excess of its Pro Rata Share (or other share contemplated
hereunder), such Lender shall immediately (a) notify the Agent of such fact, and
(b) purchase from the other Lenders such participations in the Loans made by
them as shall be necessary to cause such purchasing Lender to share the excess
payment pro rata with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Lender, such purchase shall to that extent be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price paid therefor, together
with an amount equal to such paying Lender's ratable share (according to the
proportion of (i) the amount of such paying
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Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Borrowers agree
that any Lender so purchasing a participation from another Lender may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 11.10) with respect to such
participation as fully as if such Lender were the direct creditor of Borrowers
in the amount of such participation. The Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments.
2.14 EXTENSION OF SCHEDULED TERMINATION DATE: SUBSTITUTION OF LENDERS
(a At any time during the ten-day period commencing on October
30, 1999 and ending on November 8, 1999, Borrowers may, at their
option, request all Lenders to extend the scheduled Termination Date by
one year by means of a letter, addressed to each Lender and the Agent,
substantially in the form of Exhibit H. Each Lender electing (in its
sole and complete discretion) so to extend the scheduled Termination
Date shall deliver signed counterparts of such letter to Borrowers and
the Agent no later than 30 days after the date of such request by
Borrowers (such 30th day, the "Extension Response Date"). Any Lender
which does not deliver such counterparts by the Extension Response Date
shall be deemed to have declined to extend the scheduled Termination
Date). If all Lenders elect to extend the scheduled Termination Date,
the scheduled Termination Date shall be extended for an additional
one-year period on the date on which the Agent has received signed
counterparts of such letter from all Lenders (and the Agent shall
promptly notify Borrowers and the Lenders of such extensions). If all
Lenders do not elect to extend the scheduled Termination Date, the
provisions of subsection (b) below shall apply.
(b If the scheduled Termination Date is not extended pursuant
to subsection (a) above after a request by Borrowers, Borrowers may, at
any time prior to the 45th day after the Extension Response Date for
such request, arrange for any Lender that did not elect to extend the
Termination Date (a "Declining Lender") to assign its Loans, its
Commitment and all of its other rights and obligations hereunder to one
or more other Lenders and/or Eligible Assignees (any such Person, a
"Successor Lender"); provided that no assignment to an Eligible
Assignee which is not a Lender shall be effective without the prior
written consent of the Agent (which consent shall not be unreasonably
withheld or delayed). Any such assignment shall be made pursuant to an
Assignment and Acceptance between the Declining Lender and each
applicable Successor Lender (it being understood that no Declining
Lender shall be required to make any such assignment unless all of such
Declining Lender's Loans, Commitment and other rights and obligations
hereunder are being assigned concurrently pursuant to one or more
assignments). On the date of any such assignment, (i) the Successor
Lender(s) shall pay to the Declining Lender an amount equal to the
principal amount of all of such Declining Lender's outstanding Loans,
(ii) Borrowers shall pay to the Declining Lender an amount equal to all
accrued interest, fees and other amounts then owed to such Declining
Lender hereunder or in connection herewith (including any amount
payable
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pursuant to Section 4.4, assuming for such purpose that such Declining
Lender's Offshore Rate Loans were prepaid on the date of such
assignment) and (iii) the Declining Lender shall cease to be a Lender
hereunder. If BA shall become a Declining Lender and is replaced as a
Lender (and as an Issuing Lender and Swing Line Lender) pursuant to
this subsection (b), BA shall resign as Agent and the provisions of
Section 10.9 shall apply.
(c If all Declining Lenders have been replaced pursuant to
subsection (b) on or before the 45th day after the applicable Extension
Response Date, then the scheduled Termination Date shall be extended
for an additional one-year period (and the Agent shall promptly notify
Borrowers and the Lenders of such extension).
2.15 OPTIONAL INCREASE COMMITMENTS. Borrowers may at any time, by means
of a letter to the Agent and each Lender substantially in the form of Exhibit I
request that the Lenders increase the combined Commitments; provided that (i)
such letter shall be accompanied by evidence reasonably satisfactory to the
Agent that the board of directors of each Borrower has approved such increase
and (ii) in no event shall the aggregate amount of the combined Commitments
exceed $250,000,000 without the written consent of all Lenders. Each Lender
shall have the option (in its sole and complete discretion) to subscribe for its
proportionate share of such increase, according to its then-existing Pro Rata
Share. Each Lender shall respond to Borrowers' request within 20 Business Days
by submitting a response in the form of Attachment 1 to Exhibit I to the Agent
(and any Lender not responding within such period shall be deemed to have
declined such request). At the option of Borrowers, any part of the proposed
increase not so subscribed may be assumed, within ten Business Days after all
Lenders have responded to (or are deemed to have declined) such request, by one
or more existing Lenders and/or by one or more Persons meeting the
qualifications of an Eligible Assignee, in amounts which are acceptable to
Borrowers; it being understood that any assumption by a Person which is not an
existing Lender shall be subject to consent of the Agent (which consent shall
not be unreasonably withheld or delayed). Any increase in the combined
Commitments pursuant to this Section 2.15 shall become effective on the earliest
to occur of (a) the date on which the proposed increase has been fully
subscribed, (b) ten Business Days after the date on which all Lenders have
responded to (or are deemed to have declined) Borrowers' request for an
increase, and (c) the date, which shall not be earlier than the date on which
all Lenders have responded to (or are deemed to have declined) Borrowers'
request for an increase, on which Borrower Representative notifies Agent that
Borrowers accept an increase in the combined Commitments which is less than the
full amount of the requested increase. The Agent shall promptly notify Borrowers
and the Lenders of any increase in the amount of the combined Commitments
pursuant to this Section 2.15 and of the Commitment and Pro Rata Share of each
Lender after giving effect thereto. Borrowers acknowledge that, in order to
maintain Loans in accordance with each Lender's Pro Rata Share, a reallocation
of the Commitments as a result of a non-pro-rata subscription to an increase in
the combined Commitments may require prepayment of all or portions of certain
Loans on the date of such increase (and any such prepayment shall be subject to
the provisions of Section 4.4).
2.16 SWING LINE COMMITMENT. Subject to the terms and conditions of this
Agreement, the Swing Line Lender agrees to make loans to Borrowers on a
revolving basis (each such loan, a "Swing Line Loan") from time to time on any
Business Day during the period from the Effective Date
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to the Termination Date in an aggregate principal amount at any one time
outstanding not to exceed $5,000,000; provided that after giving effect to any
proposed Swing Line Loan, the Total Outstandings shall not exceed the combined
Commitments.
2.17 BORROWING PROCEDURES FOR SWING LINE LOANS. Borrower Representative
shall provide a Notice of Swing Line Loan or telephonic notice (followed by a
confirming Notice of Swing Line Loan) of a proposed Swing Line Loan to the Agent
and the Swing Line Lender not later than 12:00 noon Chicago time on the proposed
Borrowing Date. Each such notice shall be effective upon receipt by the Agent
and the Swing Line Lender and shall specify the date and the principal amount of
such Swing Line Loan. Unless the Swing Line Lender has received written notice
prior to 11:00 a.m. Chicago time on the proposed Borrowing Date from the Agent
or any Lender that one or more of the conditions precedent set forth in Article
5 with respect to such Swing Line Loan is not then satisfied, the Swing Line
Lender shall pay over the requested principal amount to Borrowers on the
requested Borrowing Date in immediately available funds. Each Swing Line Loan
shall be made on a Business Day and shall be in the amount of $1,000,000 or a
higher integral multiple thereof. The Swing Line Lender will promptly notify the
Agent of the making and amount of each Swing Line Loan. Each Swing Line Loan
shall be paid in full by Borrowers on or before the seventh Business Day after
the Borrowing Date for such Swing Line Loan and on the Termination Date.
2.18 PREPAYMENT OR REFUNDING OF SWING LINE LOANS
(a Borrowers may, at any time and from time to time, prepay
any Swing Line Loan to Borrowers in whole or in part, in an amount
equal to $1,000,000 or a higher integral multiple thereof. Borrowers
shall deliver a notice of prepayment in accordance with Section 11.2 to
be received by the Agent and the Swing Line Lender not later than 11:00
a.m. Chicago time on the Business Day of such prepayment, specifying
the date and amount of such prepayment. If such notice is given by
Borrowers, the payment amount specified in such notice shall be due and
payable on the date specified therein.
(b The Swing Line Lender may, at any time in its sole and
absolute discretion, and shall, on the sixth Business Day after the
Borrowing Date for each Swing Line Loan, on behalf of Borrowers (which
hereby irrevocably direct the Swing Line Lender to act on their
behalf), request each Lender to make a Loan in an amount equal to such
Lender's Pro Rata Share of the principal amount of the Swing Line Loans
to Borrowers outstanding on the date such notice is given. Unless any
of the events described in subsection 9.1(f) or (g) shall have occurred
(in which event the procedures of Section 2.19 shall apply), and
regardless of whether the conditions precedent set forth in this
Agreement to the making of Loans are then satisfied or the aggregate
amount of such Loans is not in the minimum or integral amount otherwise
required hereunder, each Lender shall make the proceeds of its Loan
available to the Agent for the account of the Swing Line Lender at the
Agent's Payment Office prior to 12:00 noon Chicago time in immediately
available funds on the Business Day next succeeding the date such
notice is given. The proceeds of such Loans shall be immediately
applied to repay the outstanding Swing Line Loans of Borrowers. All
Loans made pursuant to this Section 2.18 shall be Base Rate Loans (but,
subject to the other provisions of this Agreement, may be converted to
Offshore Rate Loans or CD Rate Loans).
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2.19 PARTICIPATIONS IN SWING LINE LOANS
(a) If an event described in subsection 9.1(f) or (g) exists
(or for any reason the Lenders may not make Loans pursuant to Section
2.18, each Lender will, upon notice from the Agent, purchase from the
Swing Line Lender (and the Swing Line Lender will sell to each Lender)
an undivided participation interest in all outstanding Swing Line Loans
in an amount equal to its Pro Rata Share of the outstanding principal
amount of the Swing Line Loans (and each Lender will immediately
transfer to the Agent, for the account of the Swing Line Lender, in
immediately available funds, the amount of its participation).
(b) Whenever, at any time after the Swing Line Lender has
received payment for any Lender's participation interest in the Swing
Line Loans pursuant to subsection 2.19(a), the Swing Line Lender
receives any payment on account thereof, the Swing Line Lender will
distribute to the Agent for the account of such Lender its
participation interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which
such Lender's participation 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 Agent for the account of the Swing Line
Lender any portions 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.
2.20 PARTICIPATION OBLIGATIONS UNCONDITIONAL
(a) Each Lender's obligation to make Loans pursuant to Section
2.18 and/or to purchase participation interests in Swing Line Loans
pursuant to Section 2.19 shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including (a) any
set-off, counterclaim, recoupment, defense or other right which such
Lender may have against the Swing Line Lender, either Borrower or any
other Person for any reason whatsoever; (b) the occurrence or
continuance of an Event of Default or Default; (c) any adverse change
in the condition (financial or otherwise) of either Borrower or any
other Person; (d) any breach of this Agreement or any other Loan
Document by either Borrower or any other Person; (e) any inability of
Borrowers to satisfy the conditions precedent to borrowing set forth in
this Agreement on the date upon which any such Loan is to be made or
any participation interest therein in to be purchased; or (f) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
(b) Notwithstanding the provisions of subsection 2.20(a), no
Lender shall be required to make any Loan to Borrowers to refund a
Swing Line Loan pursuant to Section 2.18 or to purchase a participation
interest in a Swing Line Loan pursuant to Section 2.19 if, prior to the
making by the Swing Line Lender of such Swing Line Loan, the Swing Line
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Lender received written notice from any Lender specifying that such
Lender believed in good faith that one or more of the conditions
precedent to the making of such Swing Line Loan were not satisfied and,
in fact, such conditions precedent were not satisfied at the time of
the making of such Swing Line Loan; provided that the obligation of
such Lender to make such Loans and to purchase such participation
interests shall be reinstated upon the earlier to occur of (i) the date
on which such Lender notifies the Swing Line Lender that its prior
notice has been withdrawn and (ii) the date on which all conditions
precedent to the making of such Swing Line Loan have been satisfied (or
waived by the Majority Lenders or all Lenders, as applicable).
2.21 CONDITIONS TO SWING LINE LOANS. Notwithstanding any other
provision of this Agreement, the Swing Line Lender shall not be obligated to
make any Swing Line Loan if a Default or an Event of Default exists or would
result therefrom.
2.22 APPOINTMENT OF BORROWER REPRESENTATIVE. Each Borrower hereby
designates Holding Co. as its representative and agent on its behalf for the
purposes of issuing Notices of Borrowings, Notices of Swing Line Loans, Requests
for Extension of Termination Date and Requests for Increase in Commitments,
giving instructions with respect to the disbursement of the proceeds of the
Loans, selecting interest rate options, requesting Letters of Credit, giving and
receiving all other notices and consents hereunder or under any of the other
Loan Documents and taking all other actions (including in respect of compliance
with covenants) on behalf of any Borrower or Borrowers under the Loan Documents.
Borrower Representative hereby accepts such appointment. Agent and each Lender
may regard any notice or other communication pursuant to any Loan Document from
Borrower Representative as a notice or communication from all Borrowers, and may
give any notice or communication required or permitted to be given to any
Borrower or Borrowers hereunder to Borrower Representative on behalf of such
Borrower or Borrowers. Each Borrower agrees that each notice, election,
representation and warranty, covenant, agreement and undertaking made on its
behalf by Borrower Representative shall be deemed for all purposes to have been
made by such Borrower and shall be binding upon and enforceable against such
Borrower to the same extent as if the same had been made directly by such
Borrower.
ARTICLE 3
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT SUBFACILITY.
(a) On the terms and conditions set forth herein (i) each
Issuing Lender agrees, (A) from time to time on any Business Day during
the period from the Closing Date to the Termination Date to issue
Letters of Credit and/or Banker's Acceptances for the account of either
Borrower, and to amend or renew Letters of Credit and/or Banker's
Acceptances previously issued by it, in accordance with subsections
3.2(c) and 3.2(d), and (B) to honor properly drawn drafts under the
Letters of Credit issued by it; and (ii) the Lenders severally
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agree to participate in Letters of Credit and Banker's Acceptances
Issued for the account of either Borrower; provided that no Issuing
Lender shall be obligated to Issue, and no Lender shall be obligated
to participate in, any Letter of Credit if as of the date of Issuance
of such Letter of Credit (the "Issuance Date") (1) the Total
Outstandings exceed the combined Commitments, (2) the Effective Amount
of all L/C Obligations would exceed the L/C Commitment, or (3) the
participation of any Lender in the Effective Amount of all L/C
Obligations plus the participation of such Lender in the principal
amount of all outstanding Swing Line Loans plus the outstanding
principal amount of the Loans of such Lender would exceed such
Lender's Commitment. Within the foregoing limits, and subject to the
other terms and conditions hereof, the ability of the Borrowers to
obtain Letters of Credit shall be fully revolving, and, accordingly,
the Borrowers may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit which have expired or which have
been drawn upon and reimbursed.
(b) No Issuing Lender shall be under any obligation to Issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or restrain such Issuing Lender from Issuing such Letter of
Credit, or any Requirement of Law applicable to such Issuing
Lender or any request or directive (whether or not having the
force of law) from any Governmental Authority with
jurisdiction over such Issuing Lender shall prohibit, or
request that such Issuing Lender refrain from, the Issuance of
letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which such Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon such Issuing Lender any
unreimbursed loss, cost or expense which was not applicable on
the Closing Date and which such Issuing Lender in good faith
deems material to it (it being understood that the applicable
Issuing Lender shall promptly notify the Borrowers and the
Agent of any of the foregoing events or circumstances);
(ii) such Issuing Lender has received written notice
from any Lender, the Agent or either Borrower, on or prior to
the Business Day prior to the requested date of Issuance of
such Letter of Credit or Bankers Acceptance, that one or more
of the applicable conditions contained in Section 5 is not
then satisfied;
(iii) the expiry date of such requested Letter of
Credit or Bankers Acceptance is after the Termination Date,
unless all of the Lenders have approved such expiry date in
writing;
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(iv) such Letter of Credit does not provide for
drafts, or is not otherwise in form and substance acceptable
to such Issuing Lender, or the Issuance of a Letter of Credit
or Bankers Acceptance shall violate any applicable policies of
such Issuing Lender; or
(v) such Letter of Credit or Bankers Acceptance is
denominated in a currency other than Dollars.
(c) Each Letter of Credit shall by its terms expire not later
than the earlier of (i) the first anniversary of the date of issuance
or extension (subject to extension or renewal by the Issuing Lender as
contemplated by Section 3.2) and (ii) the Termination Date. Each
Bankers Acceptance shall have a term of six months or less. Each Letter
of Credit and each Bankers Acceptance shall by its terms provide for
payment of drawings in Dollars.
(d) As of the Closing Date, the outstanding Letters of Credit
listed on Schedule 3.1 which were originally issued pursuant to the
Existing Credit Agreement shall be deemed to be issued by the Issuing
Lender and outstanding under this Agreement and shall be subject to all
of the terms and conditions of this Agreement.
3.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) Each Letter of Credit shall be issued upon the irrevocable
written request of Borrowers Representative received by the applicable
Issuing Lender (with a copy sent by Borrower's Representative to the
Agent) at least one Business Day (or such shorter time as the Issuing
Lender and the Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of issuance. Each such request
for issuance of a Letter of Credit shall be by facsimile, confirmed
immediately (by messenger or overnight courier) in an original writing,
in the form of an L/C Application, and shall specify in form and detail
satisfactory to the applicable Issuing Lender: (i) the face amount of
the Letter of Credit; (ii) the expiry date of the Letter of Credit;
(iii) the name and address of the beneficiary thereof; (iv) the
documents to be presented by the beneficiary of the Letter of Credit in
case of any drawing thereunder; (v) the full text of any certificate to
be presented by the beneficiary in case of any drawing thereunder; (vi)
the Borrower requesting the Issuance of such Letter of Credit; and
(vii) such other matters as such Issuing Lender may require.
(b) Promptly upon receipt of any L/C Application or L/C
Amendment Application, the applicable Issuing Lender will confirm with
the Agent (by telephone or in writing) that the Agent has received a
copy of such L/C Application or L/C Amendment Application from the
Borrowers and, if not, such Issuing Lender will provide the Agent with
a copy thereof. Unless the applicable Issuing Lender has received on or
before the Business Day immediately preceding the date such Issuing
Lender is to issue a requested Letter of Credit, (A) notice from the
Agent directing such Issuing Lender not to issue such Letter of Credit
because such issuance is not then permitted under subsection 3.1(a) as
a result of the
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limitations set forth in clauses (1) through (3) thereof or (B) a
notice described in subsection 3.1(b)(ii), then, subject to the terms
and conditions hereof, such Issuing Lender shall, on the requested
date, issue a Letter of Credit for the account of Borrowers in
accordance with such Issuing Lender's usual and customary business
practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Termination Date, the applicable Issuing Lender will,
upon the written request of Borrower Representative received by such
Issuing Lender (with a copy sent by Borrower Representative to the
Agent) at least one Business Day (or such shorter time as the
applicable Issuing Lender and the Agent may agree in a particular
instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request
for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately (by messenger or overnight courier) in an
original writing, made in the form of an L/C Amendment Application and
shall specify in form and detail satisfactory to such Issuing Lender:
(i) the Letter of Credit to be amended; iii) the proposed date of
amendment of such Letter of Credit (which shall be a Business Day);
(iii) the nature of the proposed amendment, and (iv) such other matters
as such Issuing Lender may require. No Issuing Lender shall have any
obligation to amend any Letter of Credit if: (A) such Issuing Lender
would have no obligation, at such time to issue such Letter of Credit
in its amended form under the terms of this Agreement; or (B) the
beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit. The Agent will promptly notify the
Lenders of any Issuance of a Letter of Credit.
(d) The Issuing Lenders and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the Termination Date, at
the option of Borrower Representative and upon the written request of
Borrower Representative received by the applicable Issuing Lender (with
a copy sent by Borrower Representative to the Agent) at least one
Business Day (or such shorter time as the applicable Issuing Lender and
the Agent may agree in a particular instance in their sole discretion)
prior to the proposed date of notification of renewal, the applicable
Issuing Lender shall be entitled to authorize the automatic renewal of
any Letter of Credit issued by it. Each such request for renewal of a
Letter of Credit shall be made by facsimile, confirmed immediately in
an original writing, in the form of an L/C Amendment Application, and
shall specify in form and detail satisfactory to the applicable Issuing
Lender: (i) the Letter of Credit to be renewed; (ii) the proposed date
of notification of renewal of such Letter of Credit (which shall be a
Business Day); (iii) the revised expiry date of such Letter of Credit
(which, unless all Lenders otherwise consent in writing, shall be prior
to the Termination Date); and (iv) such other matters pertaining to
such Letter of Credit as such Issuing Lender may reasonably require. No
Issuing Lender shall be under any obligation to renew any Letter of
Credit if: (A) such Issuing Lender would have no obligation at such
time to issue or amend such Letter of Credit in its renewed form under
the terms of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed renewal of such Letter of Credit.
If any outstanding Letter of Credit shall provide that it shall be
automatically renewed unless the beneficiary thereof receives notice
from the applicable
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Issuing Lender that such Letter of Credit shall not be renewed, and if
at the time of renewal such Issuing Lender would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance
with this subsection 3.2(d) upon the request of Borrowers but such
Issuing Lender shall not have received any L/C Amendment Application
from Borrowers with respect to such renewal or other written direction
by Borrowers with respect thereto, such Issuing Lender shall
nonetheless be permitted to allow such Letter of Credit to renew, and
Borrowers and the Lenders hereby authorize any such renewal, and,
accordingly, such Issuing Lender shall be deemed to have received an
L/C Amendment Application from Borrowers requesting such renewal.
(e) Each Issuing Lender may, at its election (or as required
by the Agent at the direction of the Majority Lenders), deliver any
notice of termination or other communication to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the
expiry date of such Letter of Credit to be a date not later than the
Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Lender will deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit,
or amendment to or renewal of a Letter of Credit, to an advising bank
or a beneficiary, a true and complete copy of such Letter of Credit or
of such amendment or renewal.
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS.
(a) Immediately upon the Issuance of each Letter of Credit on
or after the Initial Closing Date, each Lender shall be deemed to and
hereby irrevocably and unconditionally agrees to, purchase from the
applicable Issuing Lender a participation in such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) such
Lender's Pro Rata Share times (ii) the maximum amount available to be
drawn under such Letter of Credit and the amount of such drawing,
respectively. For purposes of Section 2.1, each Issuance of a Letter of
Credit shall be deemed to utilize the Commitment of each Lender by an
amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the applicable
Issuing Lender will promptly notify Borrowers and the Agent. Borrowers
shall (subject, if applicable, to their right to obtain Base Rate Loans
as provided below) reimburse the applicable Issuing Lender prior to
10:30 a.m. Chicago time on each date that any amount is paid by such
Issuing Lender under any Letter of Credit (each such date, an "Honor
Date") in an amount equal to the amount so paid by such Issuing Lender;
provided that, to the extent that any Issuing Lender accepts a drawing
under a Letter of Credit after 10:30 a.m. Chicago time Borrowers will
not be obligated to reimburse such
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Issuing Lender until the next Business Day and the "Honor Date" for
such Letter of Credit shall be such next Business Day. If Borrowers
fail to reimburse an Issuing Lender for the full amount of any drawing
under any Letter of Credit by 10:30 a.m. Chicago time on the Honor
Date, such Issuing Lender will promptly notify the Agent and the Agent
will promptly notify each Lender thereof, and Borrowers shall be
deemed to have requested that Base Rate Loans be made by the Lenders
to be disbursed on the Honor Date under such Letter of Credit, subject
to the amount of the unutilized portion of the combined Commitments
and subject to the conditions set forth in Section 5.2 other than
Section 5.2(a). Any notice given by the Issuing Lender or the Agent
pursuant to this subsection 3.3(b) may be oral if immediately
confirmed in writing (including by facsimile); provided that the lack
of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.
(c) Each Lender shall upon any notice pursuant to subsection
3.3(b) make available to the Agent for the account of the applicable
Issuing Lender an amount in Dollars and in immediately available funds
equal to its Pro Rata Share of the amount of the drawing, whereupon the
Lenders shall (subject to subsection 3.3(d)) each be deemed to have
made a Loan consisting of a Base Rate Loan to Borrowers in such amount.
If any Lender so notified fails to make available to the Agent for the
account of the applicable Issuing Lender the amount of such Lender's
Pro Rata Share of the amount of such drawing by no later than 1:00 p.m.
Chicago time on the Honor Date, then interest shall accrue on such
Lender's obligation to make such payment, from the Honor Date to the
date such Lender makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such period. The
Agent will promptly give notice of the occurrence of the Honor Date,
but failure of the Agent to give any such notice on the Honor Date or
in sufficient time to enable any Lender to effect such payment on such
date shall not relieve such Lender from its obligations under this
Section 3.3.
(d) With respect to any unreimbursed drawing that is not
converted into Base Rate Loans, in whole or in part, because of the
failure of Borrowers to satisfy the conditions set forth in Section 5.2
(other than subsection 5.2(a) which need not be satisfied) or for any
other reason, Borrowers shall be deemed to have incurred from the
applicable Issuing Lender an L/C Borrowing in the amount of such
drawing, which L/C Borrowing shall be due and payable on demand and
shall bear interest (payable on demand) at a rate per annum equal to
the Base Rate plus 2%, and each Lender's payment to such Issuing Lender
pursuant to subsection 3.3(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under
this Section 3.3.
(e) Each Lender's obligation in accordance with this Agreement
to make the Loans or L/C Advances, as contemplated by this Section 3.3,
as a result of a drawing under a Letter of Credit, shall be absolute
and unconditional and without recourse to any Issuing Lender and shall
not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender may
have against the applicable Issuing
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Lender, Borrowers or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default or an Event of Default, or a
Material Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing;
provided that each Lender's obligation to make Loans under this Section
3.3 is subject to the conditions set forth in Section 5.2 (other than
subsection 5.2(a)).
3.4 REPAYMENT OF PARTICIPATIONS.
(a) Upon (and only upon) receipt by the Agent for the account
of an Issuing Lender of immediately available funds from or on behalf
of Borrowers (i) in reimbursement of any payment made by such Issuing
Lender under a Letter of Credit with respect to which any Lender has
paid the Agent for the account of such Issuing Lender for such Lender's
participation in such Letter of Credit pursuant to Section 3.3 or (ii)
in payment of interest thereon, the Agent will pay to each Lender, in
the same funds as those received by the Agent for the account of such
Issuing Lender, the amount of such Lender's Pro Rata Share of such
funds, and such Issuing Lender shall receive the amount of the Pro Rata
Share of such funds of any Lender that did not so pay the Agent for the
account of such Issuing Lender.
(b) If the Agent or an Issuing Lender is required at any time
to return to either Borrower, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion
of any payment made by or on behalf of such Borrower to the Agent for
the account of an Issuing Lender pursuant to subsection 3.4(a) in
reimbursement of a payment made under a Letter of Credit or interest or
fee thereon, each Lender shall, on demand of the Agent, forthwith
return to the Agent or the applicable Issuing Lender the amount of its
Pro Rata Share of any amount so returned by the Agent or such Issuing
Lender plus interest thereon from the date such demand is made to the
date such amount is returned by such Lender to the Agent or such
Issuing Lender, at a rate per annum equal to the Federal Funds Rate in
effect from time to time.
3.5 ROLE OF THE ISSUING LENDER.
(a) Each Lender and each Borrower agree that, in paying any
drawing under a Letter of Credit, the applicable Issuing Lender shall
not have any responsibility to obtain any document (other than any
sight draft and certificate expressly required by such Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of
any such document or the authority of the Person executing or
delivering any such document.
(b) No Issuing Lender or Agent-Related Person, nor any of
their respective correspondents, participants or assignees, shall be
liable to any Lender for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders (including
the Majority Lenders, as applicable); (ii) any action taken or omitted
in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any L/C
Related Document.
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(c) The Borrowers hereby assume all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided that this assumption is not intended to,
and shall not, preclude either Borrower pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or
under any other agreement. No Issuing Lender or Agent-Related Person,
nor any of their respective correspondents, participants or assignees,
shall be liable or responsible for any of the matters described in
clauses (i) through (vii) of Section 3 6; provided that, anything in
such clauses to the contrary notwithstanding, Borrowers may have a
claim against an Issuing Lender, and such Issuing Lender may be liable
to Borrowers, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by Borrowers
which Borrowers prove were caused by such Issuing Lender's willful
misconduct or gross negligence or such Issuing Lender's willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) and/or documents
strictly complying with the terms and conditions of such Letter of
Credit. In furtherance and not in limitation of the foregoing: (i) an
Issuing Lender may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of
any notice or information to the contrary (absent such Issuing Lender's
willful misconduct or gross negligence); and (ii) no Issuing Lender
shall be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof in
whole or in part, which may prove to be invalid or ineffective for any
reason (absent such Issuing Lender's gross negligence or willful
misconduct).
3.6 OBLIGATIONS ABSOLUTE. The obligations of Borrowers under this
Agreement and any L/C-Related Document to reimburse the applicable Issuing
Lender for a drawing under a Letter of Credit issued for the account of either
Borrower, and to repay any L/C Borrowing and any drawing under any such Letter
of Credit converted into Loans, shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement and each
such other L/C-Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the applicable Borrower in respect of any
Letter of Credit or any other amendment or waiver of or any
consent to departure from all or any of the L/C-Related
Documents;
(iii) the existence of any claim, set-off, defense or
other right that either Borrower may have at any time against
any beneficiary or any transferee of any Letter of Credit (or
any Person for whom any such beneficiary or any such
transferee may be acting), the applicable Issuing Lender or
any other Person, whether in connection
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with this Agreement, the transactions contemplated hereby or
by any L/C-Related Document or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter
of Credit;
(v) any payment by an Issuing Lender under any Letter
of Credit against presentation of a draft or certificate or
document that does not strictly comply with the terms of such
Letter of Credit; or any payment made by an Issuing Lender
under any Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in
connection with any Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or
consent to departure from any other guarantee, for all or any
of the obligations of either Borrower in respect of any Letter
of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any
other circumstance that might otherwise constitute a defense
available to, or a discharge of, such Borrowers.
3.7 If any Letter of Credit remains outstanding and partially or
wholly undrawn as of the Termination Date, then Borrowers jointly and severally
agree to immediately Cash Collateralize the L/C Obligations in an amount equal
to the maximum amount then available to be drawn under all Letters of Credit.
3.8 The Uniform Customs and Practice for Documentary Credits as
published by the International Chamber of Commerce ("UCP") most recently at the
time of issuance of any Letter of Credit shall (unless otherwise expressly
provided in such Letter of Credit) apply to such Letter of Credit.
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ARTICLE 4
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 TAXES.
(a) Any and all payments by Borrowers to any Lender or the
Agent under this Agreement and any other Loan Document shall be made
free and clear of, and without deduction or withholding for, any Taxes.
In addition, Borrowers shall pay all Other Taxes.
(b) If Borrowers shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section), such Lender or
the Agent, as the case may be, receives and retains an amount
equal to the sum it would have received and retained had no
such deductions or withholdings been made;
(ii) Borrowers shall make such deductions and
withholdings;
(iii) Borrowers shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority
in accordance with applicable law; and
(iv) Borrowers shall also pay to each Lender or the
Agent for the account of such Lender, at the time interest is
paid, Further Taxes in the amount that the respective Lender
specifies as necessary to preserve the after-tax yield the
Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
(c) Borrowers agree to indemnify and hold harmless each Lender
and the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and
(iii) Further Taxes in the amount that the respective Lender specifies
as necessary to preserve the after-tax yield the Lender would have
received if such Taxes, Other Taxes or Further Taxes had not been
imposed, and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto, whether or
not such Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30
days after the date the Lender or the Agent makes written demand
therefor.
(d) If any Lender becomes entitled to claim any
indemnification payment pursuant to this Section 4.1, it shall notify
Borrowers thereof within 90 days after such Lender becomes aware of the
nature and extent of such claim and shall also notify Agent thereof. A
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certificate as to any additional amounts payable pursuant to this
Section 4.1 submitted by a Lender to Borrowers shall be conclusive
absent manifest error. Such certificate shall outline in reasonable
detail the computation of any amounts claimed by it under this Section
4.1 and the assumptions underlying such computation. No Lender shall,
however, be required to disclose, in such certificate or otherwise, any
proprietary or confidential information. No Lender shall be entitled to
any indemnification payment under this Section 4.1 unless it shall have
notified Borrowers that it will demand indemnification not later than
90 days after the date on which the Lender becomes aware of the nature
and extent of the claim.
(e) Within 30 days after the date of any payment by Borrowers
of Taxes, Other Taxes or Further Taxes, Borrowers shall furnish to each
Lender or the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory
to such Lender or the Agent.
(f) If Borrowers are required to pay any amount to any Lender
or the Agent pursuant to subsection (b) or (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending
Office so as to eliminate any such additional payment by Borrowers
which may thereafter accrue, if such change in the sole judgment of
such Lender is not otherwise disadvantageous to such Lender.
4.2 ILLEGALITY
(a) If any Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its applicable Lending
Office to make Offshore Rate Loans, then, on notice thereof by the
Lender to Borrowers through the Agent, any obligation of that Lender to
make Offshore Rate Loans shall be suspended until the Lender notifies
the Agent and Borrowers that the circumstances giving rise to such
determination no longer exist.
(b) If a Lender determines that it is unlawful to maintain any
Offshore Rate Loan, Borrowers shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Agent), prepay in
full such Offshore Rate Loans of that Lender then outstanding, together
with interest accrued thereon and amounts required under Section 4.4,
either on the last day of the Interest Period thereof, if the Lender
may lawfully continue to maintain such Offshore Rate Loans to such day,
or immediately, if the Lender may not lawfully continue to maintain
such Offshore Rate Loan. If Borrowers are required to so prepay any
Offshore Rate Loan, then concurrently with such prepayment, Borrowers
shall borrow from the affected Lender, in the amount of such repayment,
a Base Rate Loan.
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(c) If the obligation of any Lender to make or maintain
Offshore Rate Loans has been so terminated or suspended, Borrowers may
elect, by giving notice to the Lender through the Agent that all Loans
which would otherwise be made by the Lender as Offshore Rate Loans
shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Lender shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the
need for giving such notice or making such demand and will not, in the
judgment of the Lender, be illegal or otherwise disadvantageous to the
Lender.
4.3 INCREASED COSTS AND REDUCTION OF RETURN
(a) If any Lender determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance by that Lender with any guideline or
request from any central bank or other Governmental Authority (whether
or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or
maintaining any Offshore Rate Loans or CD Rate Loans or participating
in any Letter of Credit, or, in the case of Issuing Lender, any
increase in the cost to Issuing Lender of agreeing to Issue, Issuing or
maintaining any Letter of Credit or of agreeing to make or making,
funding or maintaining any unpaid drawing under any Letter of Credit,
then Borrowers shall be liable for, and shall from time to time, upon
demand (with a copy of such demand to be sent to the Agent), pay to the
Agent for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs.
(b) If any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank
or other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Lender (or its
Lending Office) or any corporation controlling such Lender with any
Capital Adequacy Regulation, affects or would affect the amount of
capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and (taking into consideration such
Lender's or such corporation's policies with respect to capital
adequacy and such Lender's desired return on capital) determines that
the amount of such capital is increased as a consequence of its
Commitments, Loans, credits or obligations under this Agreement, then,
upon demand of such Lender to Borrowers through the Agent, Borrowers
shall pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender for
such increase.
(c) Upon receiving a demand to pay amounts pursuant to
subsection 4.3(a) or 4.3(b), Borrowers may require the applicable
Lender to provide an opinion from such Lender's legal counsel or
independent accountants to the effect that (i) events of the type
described in subsection 4.3(a) or 4.3(b), as the case may be, have
occurred, and (ii) as a result
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of the occurrence of such events, the Lender has incurred costs of the
type described in subsection 4.3(a) or 4.3(b), as the case may be. The
fees and expenses of the legal counsel or independent accountants of
the Lender shall be borne by Borrowers.
4.4 FUNDING LOSSES. Borrowers shall reimburse each Lender and hold each
Lender harmless from any loss or expense which the Lender may sustain or incur
as a consequence of:
(a) the failure of Borrowers to make on a timely basis any
payment of principal of any Offshore Rate Loan or CD Rate Loan;
(b) the failure of Borrowers to borrow, continue or convert a
Loan after Borrowers have given (or are deemed to have given) a Notice
of Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of Borrowers to make any prepayment in
accordance with any notice delivered under Section 2.6;
(d) the prepayment or other payment (including after
acceleration thereof) of an Offshore Rate Loan or a CD Rate Loan on a
day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any Offshore
Rate Loan or CD Rate Loan to a Base Rate Loan on a day that is not the
last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or CD Rate Loans or
from fees payable to terminate the deposits from which such funds were obtained.
For purposes of calculating amounts payable by Borrowers to the Lenders under
this Section and under subsection 4.3(a), (i) each Offshore Rate Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall
be conclusively deemed to have been funded at the LIBOR used in determining the
Offshore Rate for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank Eurodollar market for a comparable amount and for a
comparable period, whether or not such Offshore Rate Loan is in fact so funded,
and (ii) each CD Rate Loan made by a Lender (and each related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been funded
at the rate used in determining the CD Rate for such CD Rate Loan by the
issuance of Agent's certificate of deposit in a comparable amount and for a
comparable period, whether or not such CD Rate Loan is in fact so funded.
4.5 INABILITY TO DETERMINE RATES. If the Agent determines that for any
reason adequate and reasonable means do not exist for determining the Offshore
Rate or the CD Rate for any requested Interest Period with respect to a proposed
Offshore Rate Loan or CD Rate Loan, or that the Offshore Rate or the CD Rate
applicable pursuant to subsection 2.8(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan or CD Rate Loan does not adequately and
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fairly reflect the cost to the Lenders of funding such Loan, the Agent will
promptly so notify Borrowers and each Lender. Thereafter, the obligation of the
Lenders to make or maintain CD Rate Loans or Offshore Rate Loans, as the case
may be, hereunder shall be suspended until the Agent upon the instruction of the
Majority Lenders revokes such notice in writing. Upon receipt of such notice,
Borrowers may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If Borrowers do not revoke such
Notice, the Lenders shall make, convert or continue the Loans, as proposed by
Borrowers, in the amount specified in the applicable notice submitted by
Borrowers, but such Loans shall be made, converted or continued as Base Rate
Loans instead of CD Rate Loans or Offshore Rate Loans, as the case may be.
4.6 RESERVES ON OFFSHORE RATE LOANS. Borrowers shall pay to each
Lender, as long as such Lender shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each Offshore
Rate Loan equal to the actual costs of such reserves allocated to such Loan by
the Lender (as determined by the Lender in good faith, which determination shall
be conclusive), payable on each date on which interest is payable on such Loan,
provided Borrowers shall have received at least 15 days' prior written notice
(with a copy to the Agent) of such additional interest from the Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment Date,
such additional interest shall be payable 15 days from receipt of such notice.
4.7 CERTIFICATES OF LENDERS. Any Lender claiming reimbursement or
compensation under this Article 4 shall deliver to Borrowers (with a copy to the
Agent) a certificate setting forth in reasonable detail the amount payable to
the Lender hereunder and such certificate shall be conclusive and binding on
Borrowers in the absence of manifest error.
4.8 SUBSTITUTION OF LENDERS. Upon the receipt by Borrowers from any
Lender (an "Affected Lender") of a claim for compensation under Section 4.3,
Borrowers may: (i) request the Affected Lender to use its best efforts to obtain
a replacement Lender or financial institution satisfactory to Borrowers to
acquire and assume all or a ratable part of all of such Affected Lender's Loans
and Commitment (a "Replacement Lender"); (ii) request one more of the other
Lenders to acquire and assume all or part of such Affected Lender's Loans and
Commitment; or (iii) designate a Replacement Lender. Any such designation of a
Replacement Lender under clause (i) or (iii) shall be subject to the prior
written consent of the Agent (which consent shall not be unreasonably withheld).
4.9 SURVIVAL. The agreements and obligations of Borrowers in this
Article 4 shall survive the payment of all other Obligations.
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ARTICLE 5
CONDITIONS PRECEDENT
5.1 CONDITION OF INITIAL LOANS. The obligation of each Lender to
make its initial Loan hereunder is subject to the condition that the Agent shall
have received on or before the Closing Date all of the following, in form and
substance reasonably satisfactory to the Agent and each Lender, and in
sufficient copies for each Lender:
(a) CREDIT AGREEMENT AND NOTES. This Agreement and the Notes
executed by each party thereto;
(b) RESOLUTIONS; INCUMBENCY
(i) Copies of the resolutions of the board of
directors of each Borrower and each Subsidiary that may become
party to a Loan Document authorizing the transactions
contemplated hereby, certified as of the Closing Date by the
Secretary or an Assistant Secretary of such Person; and
(ii) A certificate of the Secretary or Assistant
Secretary of each Borrower, and each Subsidiary that may
become party to a Loan Document certifying the names and true
signatures of the officers of such Borrower or such Subsidiary
authorized to execute, deliver and perform, as applicable,
this Agreement, and all other Loan Documents to be delivered
by it hereunder;
(c) ORGANIZATION DOCUMENTS; GOOD STANDING. Each of the
following documents:
(i) the articles or certificate of incorporation and
the bylaws of each Borrower and each Subsidiary party to any
Loan Document as in effect on the Closing Date, certified by
the Secretary or Assistant Secretary of such Borrower or such
Subsidiary as of the Closing Date; and
(ii) a good standing certificate for each Borrower
and each Subsidiary party to any Loan Document from the
Secretary of State (or similar, applicable Governmental
Authority) of its state of incorporation and each state where
such Borrower or such Subsidiary is qualified to do business
as a foreign corporation as of a recent date, together with a
bring-down certificate by facsimile, dated the Closing Date;
(d) LEGAL OPINION. An opinion of Sonnenschein, Nath &
Rosenthal, counsel to Borrowers and addressed to the Agent and the
Lenders, substantially in the form of Exhibit E;
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(e) PAYMENT OF FEES. Evidence of payment by Borrowers of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of BA to the extent invoiced prior to
or on the Closing Date, plus such additional amounts of Attorney Costs as shall
constitute BA's reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between Borrowers and BA);
including any such costs, fees and expenses arising under or referenced in
Sections 2.9 and 11.4;
(f) CERTIFICATE. A certificate signed by a Responsible
Officer, dated as of the Closing Date, stating that:
(i) the representations and warranties contained in
Article 6 are true and correct on and as of such date, as
though made on and as of such date;
(ii) no Default or Event of Default exists or would
result from the initial Borrowing; and
(iii) there has occurred since July 31, 1998 no event
or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect; and
(g) OTHER DOCUMENTS. Such other approvals, opinions, documents
or materials as the Agent or any Lender may reasonably request.
5.2 CONDITIONS TO ALL LOANS, The obligation of each Lender to make any
Loan to be made by it (including its initial Loan) or to continue or convert any
Loan under Section 2.4 and the obligation of the Issuing Lender to issue any
Letter of Credit is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date or Conversion/Continuation Date or
Issuance Date:
(a) NOTICE; APPLICATION. The Agent shall have received (with,
in the case of the initial Loan only, a copy for each Lender) a Notice
of Borrowing or a Notice of Conversion/Continuation, as applicable or,
in the case of the Issuance of any Letter of Credit, the Issuing Lender
and the Agent shall have received an Application as required under
Section 3.2;
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties in Article 6 shall be true and correct
on and as of such Borrowing Date or Conversion/Continuation Date or
Issuance Date with the same effect as if made on and as of such
Borrowing Date or Conversion/Continuation Date or Issuance Date (except
to the extent such representations and warranties expressly refer to an
earlier date, in which case
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they shall be true and correct as of such earlier date); provided,
however, that Borrowers may from time to time update the information
set forth in the Schedules referred to in Article 6 for changes
occurring subsequent to the Closing Date so long as the new matters set
forth in the updated Schedules have not resulted in, and cannot
reasonably be expected to result in, a Material Adverse Effect; and
(c) NO EXISTING DEFAULT. No Default or Event of Default shall
exist or shall result from such Borrowing or continuation or
conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by
Borrowers hereunder shall constitute a representation and warranty by Borrowers
hereunder, as of the date of each such notice and as of each Borrowing Date or
Conversion/Continuation Date or Issuance Date, as applicable, that the
conditions in this Section 5.2 are satisfied.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Borrowers, jointly and severally, represent and warrant to the Agent
and each Lender that:
6.1 CORPORATE EXISTENCE AND POWER. Each Borrower and each of its
Subsidiaries:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under the
Loan Documents;
(c) is duly qualified as a foreign corporation and is licensed
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 or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in clause (c) or clause (d), to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by each Borrower and its Subsidiaries of this Agreement and each
other Loan Document to which such Person is party, have been duly authorized by
all necessary corporate action, and do not and will not:
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(a) contravene the terms of any of that Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any
Contractual Obligation to which such Person is a party or any order,
injunction, writ or decree of any Governmental Authority to which such
Person or its property is subject; or
(c) violate any Requirement of Law.
6.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, Borrowers or any
of their Subsidiaries of this Agreement or any other Loan Document.
6.4 BINDING EFFECT. This Agreement and each other Loan Document to
which any Borrower or any of its Subsidiaries is a party constitute the legal,
valid and binding obligations of such Borrower and any of its Subsidiaries to
the extent it is a party thereto, enforceable against such Person in accordance
with their respective terms.
6.5 LITIGATION. Except as specifically disclosed in Schedule 6.5, there
are no actions, suits, proceedings, claims or disputes pending, or to the best
knowledge of Borrowers, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, against any Borrower, or its
Subsidiaries or any of their respective properties which:
(a) purport to affect or pertain to this Agreement or any
other Loan Document, or any of the transactions contemplated hereby or
thereby; or
(b) if determined adversely to such Borrower or its
Subsidiaries, could reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or any order
of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or directing
that the transactions provided for herein or therein not be consummated
as herein or therein provided.
6.6 NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of any Obligations by Borrowers. As of the Closing Date,
neither any Borrower nor any Subsidiary is in default under or with respect to
any Contractual Obligation in any respect which, individually or together with
all such defaults, could reasonably be expected to have a Material Adverse
Effect, or that would, if such default had occurred after the Closing Date,
create an Event of Default under subsection 9.1(e).
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6.7 ERISA COMPLIANCE. Except as specifically disclosed in
Schedule 6.7:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state
law. Each Plan which is intended to qualify under Section 401(a) of the
Code has received a favorable determination letter from the IRS and to
the best knowledge of Borrowers, nothing has occurred which would cause
the loss of such qualification. Each Borrower and each ERISA Affiliate
has made all required contributions to any Plan subject to Section 412
of the Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been
made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Borrowers, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither any Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither any Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section
4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither any Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
6.8 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the Loans are
to be used solely for the purposes set forth in and permitted by Section 7.12
and Section 8.8. Neither any Borrower nor any Subsidiary is generally engaged in
the business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 TITLE TO PROPERTIES. Each Borrower and each Subsidiary has good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. As of the Closing Date, the
property of each Borrower and its Subsidiaries is subject to no Liens, other
than Permitted Liens.
6.10 TAXES. Each Borrower and its Subsidiaries has filed all Federal
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties,
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income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against any Borrower or any Subsidiary that would, if made, have a
Material Adverse Effect.
6.11 FINANCIAL CONDITION.
(a) The unaudited consolidated financial statements of Holding
Co. and its Subsidiaries dated July 31, 1998, and the related
consolidated statements of income or operations, shareholders' equity
and cash flows for the Fiscal Quarter ended on that date:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, subject to
ordinary, good faith year end audit adjustments;
(ii) fairly present the financial condition of
Holding Co. and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule
6.11, show all material indebtedness and other liabilities,
direct or contingent, of Holding Co. and its consolidated
Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Contingent Obligations.
(b) Since July 31, 1998, there has been no Material Adverse
Effect.
6.12 ENVIRONMENTAL MATTERS. Except as specifically disclosed in
Schedule 6.12, each Borrower and its Subsidiaries are in compliance with all
applicable Environmental Laws and no Environmental Claims have been asserted
against any Borrower or any of its Subsidiaries which in either case could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
6.13 REGULATED ENTITIES. No Borrower, no Person controlling any
Borrower, and no Subsidiary, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. No Borrower is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 NO BURDENSOME RESTRICTIONS. Neither any Borrower nor any
Subsidiary is a party to or bound by any Contractual Obligation, or subject to
any restriction in any Organization Document, or any Requirement of Law, any of
which could reasonably be expected to have a Material Adverse Effect.
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6.15 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC. Each Borrower
or its Subsidiaries own or are licensed or otherwise have the right to use all
of the patents, trademarks, service marks, trade names, copyrights, contractual
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best knowledge of Borrowers, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by any Borrower or any
Subsidiary infringes upon any rights held by any other Person. Except as
specifically disclosed in Schedule 6.5, no claim or litigation regarding any of
the foregoing is pending or threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of Borrowers, proposed, which, in either case,
could reasonably be expected to have a Material Adverse Effect.
6.16 SUBSIDIARIES. As of the Closing Date, Borrowers have no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.16 hereto and have no equity investments in any other corporation or entity
other than those specifically disclosed in part (b) of Schedule 6.16.
6.17 INSURANCE. Except as specifically disclosed in Schedule 6.17, the
properties of each Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of any Borrower, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where Borrower or such Subsidiary operates. Agent and each Lender
acknowledge and agree that the insurance coverages and insurers set forth in the
summary of insurance provided by Borrowers prior to the Closing Date satisfies
the requirements of this Section 6.17 as of the Closing Date.
6.18 SWAP OBLIGATIONS. Neither any Borrower nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts.
6.19 FULL DISCLOSURE. None of the representations or warranties made by
any Borrower or any Subsidiary in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of any Borrower or any Subsidiary in connection with the Loan
Documents, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered.
6.20 SUBORDINATED DEBT. The subordination provisions of the Indenture
and the Senior Subordinated Notes are enforceable against the holders of the
Senior Subordinated Notes by Agent and the Lenders. All Obligations, including
the Obligations to pay principal of and interest on the Obligations, constitute
Senior Indebtedness entitled to the benefits of the subordination provisions
contained in the Indenture and the Senior Subordinated Notes. The principal of
and interest on the Notes and all other Obligations will constitute "senior
indebtedness" as that or any similar term is or may be used in any other
instrument evidencing or applicable to any other Subordinated Debt.
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Borrowers acknowledge that Agent and each Lender are entering into this
Agreement and are extending the Commitments in reliance upon the subordination
provisions of the Indenture and the Senior Subordinated Notes and this Section
6.20. The provisions of this Section 6.20 shall be applicable only during such
time as the Senior Subordinated Notes remain outstanding.
6.21 TRANSFER OF OPERATING ASSETS. Pursuant to the Plan of Internal
Restructuring, substantially all of the operating, manufacturing, sales and
marketing assets and related liabilities of Holding Co. (but not Holding Co.'s
intellectual property rights, other than pursuant to licenses of such rights by
Holding Co. to Operating Co.), were transferred by Holding Co. to Operating Co.,
effective as of January 31, 1998.
6.22 YEAR 2000 COMPLIANCE. Borrowers have conducted a comprehensive
review and assessment of Borrowers' computer applications and made inquiry of
Borrowers' and their Subsidiaries key suppliers, vendors and customers with
respect to the "year 2000 problem" (that is, the risk that computer applications
may not be able to properly perform date-sensitive functions after December 31,
1999) and, based on that review and inquiry, Borrowers do not believe the year
2000 problem will result in a material adverse change in Borrowers' business
condition (financial or otherwise), operations, properties or prospects, or
ability to repay the obligations.
ARTICLE 7
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding, unless the Majority Lenders waive compliance in
writing:
7.1 FINANCIAL STATEMENTS. Borrowers shall deliver to the Agent, in form
and detail satisfactory to the Agent and the Majority Lenders, with sufficient
copies for each Lender:
(a) as soon as available, but not later than 90 days after the
end of each Fiscal Year (commencing with the Fiscal Year ended January
31, 1999), a copy of the audited consolidated balance sheet of
Borrowers and their Subsidiaries as at the end of such year and the
related consolidated statements of income or operations, shareholders'
equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous Fiscal Year, and
accompanied by the opinion of KPMG Peat Marwick LLP or another
nationally-recognized independent public accounting firm ("Independent
Auditor") which report shall state that such consolidated financial
statements present fairly the financial position for the periods
indicated in conformity with GAAP applied on a basis consistent with
prior years. Such opinion shall not be qualified or limited as to the
scope of audit or the financial condition of Borrowers and their
Subsidiaries as a going concern; and
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(b) as soon as available, but not later than 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year
(commencing with the Fiscal Quarter ended October 31, 1998), a copy of
the unaudited consolidated balance sheet of Borrowers and their
Subsidiaries as of the end of such quarter and the related consolidated
statements of income or operations, shareholders' equity and cash flows
for the period commencing on the first day and ending on the last day
of such quarter, and certified by a Responsible Officer as fairly
presenting, in accordance with GAAP (subject to ordinary, good faith
year-end audit adjustments), the financial position and the results of
operations of Borrowers and their Subsidiaries.
7.2 CERTIFICATES; OTHER INFORMATION. Borrowers shall furnish to the
Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a statement of performance versus
financial covenants included in Holding Co.'s annual report;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a Compliance Certificate
executed by a Responsible Officer;
(c) promptly, copies of all financial statements and reports
that any Borrower sends to its shareholders, and copies of all
financial statements and regular, periodical or special reports
(including Forms 10K, 10Q and 8K) that any Borrower or any Subsidiary
may make to, or file with, the SEC;
(d) Within 30 days after the beginning of each Fiscal Year
Borrowers' "corporate business plan" in form and content reasonably
acceptable to Agent together with appropriate supporting details as
reasonably requested by Agent; and
(e) promptly, such additional information regarding the
business, financial or corporate affairs of any Borrower or any
Subsidiary as the Agent, at the request of any Lender, may from time to
time reasonably request.
7.3 NOTICES. Borrowers shall promptly notify the Agent and each Lender:
(a) of the occurrence of any Default or Event of Default, and
of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default
under, a Contractual Obligation of any Borrower or any Subsidiary; (ii)
any dispute, litigation, investigation, proceeding or suspension
between any Borrower or any Subsidiary and any Governmental Authority;
(iii) the commencement of, or any material development in, any
litigation or
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proceeding affecting any Borrower or any Subsidiary; including pursuant
to any applicable Environmental Laws; or (iv) any change in the
financial condition or operations of any Borrower or any Subsidiary,
which has resulted, or is likely to result, in a Material Adverse
Effect;
(c) of the occurrence of any of the following events affecting
any Borrower or any ERISA Affiliate (but in no event more than 10 days
after such event), and deliver to the Agent and each Lender a copy of
any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to any
Borrower or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by any Borrower or any ERISA Affiliate; or
(iv) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension
Liability.
(d) of any material change in accounting policies or financial
reporting practices by any Borrower or any of its consolidated
Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action (if any) the affected Borrower or
any affected Subsidiary proposes to take with respect thereto and at what time.
Each notice under subsection 7.3(a) shall describe with particularity any and
all clauses or provisions of this Agreement or other Loan Document that have
been (or foreseeably will be) breached or violated.
7.4 PRESERVATION OF CORPORATE EXISTENCE, ETC. Each Borrower shall, and
shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business
except in connection with transactions permitted by Section 8.4 and
sales of assets permitted by Section 8.3;
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(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
7.5 MAINTENANCE OF PROPERTY. Each Borrower shall maintain, and shall
cause each Subsidiary to maintain, and preserve all its property which is used
or useful in its business in good working order and condition, ordinary wear and
tear excepted, except as permitted by Section 8.3. Each Borrower and each
Subsidiary shall use the standard of care typical in the industry in the
operation and maintenance of its facilities.
7.6 INSURANCE. Each Borrower shall maintain, and shall cause each
Subsidiary to maintain, with financially sound and reputable independent
insurers, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons. Agent and each Lender
acknowledge and agree that the insurance coverages and insurers set forth in the
summary of insurance provided by Borrowers prior to the Closing Date satisfied
the requirements of this Section 7.6 as of the Closing Date.
7.7 PAYMENT OF OBLIGATIONS. Each Borrower shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP are being maintained by such Borrower
or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a
Lien (other than a Permitted Lien) upon its property; and
(c) all indebtedness, as and when due and payable, but subject
to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
7.8 COMPLIANCE WITH LAWS. Each Borrower shall comply, and shall cause
each Subsidiary to comply, in all material respects with all Requirements of Law
of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
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7.9 COMPLIANCE WITH ERISA. Each Borrower shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. Each Borrower shall
maintain and shall cause each Subsidiary to maintain proper books of record and
account, in conformity with GAAP consistently applied. Each Borrower shall
permit, and shall cause each Subsidiary to permit, representatives and
independent contractors of the Agent or any Lender to visit and inspect any of
their respective properties, to examine their respective corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to Borrowers. If any Default or Event of Default
exists, such inspection shall be at the expense of Borrowers, otherwise it shall
be at the expense of the Lenders. If any Default or Event of Default exists,
such inspection may be conducted at any time during normal business hours and
without advance notice.
7.11 ENVIRONMENTAL LAWS. Each Borrower shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
compliance with all Environmental Laws.
7.12 USE OF PROCEEDS. Borrowers shall use the proceeds of the Loans for
(i) the refinancing of existing indebtedness, (ii) the repurchase of Senior
Subordinated Notes, and (iii) working capital and other general corporate
purposes not in contravention of any Requirement of Law or of any Loan Document.
ARTICLE 8
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Majority Lenders waive compliance in
writing:
8.1 LIMITATION ON LIENS. No Borrower shall, or shall suffer or permit
any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer
to exist any Lien upon or with respect to any part of its property, whether now
owned or hereafter acquired, other than the following ("Permitted Liens"):
(a) any Lien existing on property of any Borrower or any
Subsidiary on the Closing Date and set forth in Schedule 8.1 securing
Indebtedness outstanding on such date;
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(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by Section 7.7,
provided that no notice of lien has been filed or recorded under the
Code;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by
appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of any Borrower or any Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii)
contingent obligations on surety and appeal bonds, and (iii) other
non-delinquent obligations of a like nature; in each case, incurred in
the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens,
provided that the enforcement of such Liens is effectively stayed and
all such liens in the aggregate at any time outstanding for Borrowers
and their Subsidiaries do not exceed $500,000;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, do not interfere with the ordinary conduct of the businesses
of Borrowers and their Subsidiaries;
(i) purchase money security interests on any property acquired
or held by Borrowers or their Subsidiaries in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such property;
provided that (i) such Lien attaches solely to the property so acquired
in such transaction, (ii) the principal amount of the debt secured
thereby does not exceed 100% of the cost of such property, and (iii)
the principal amount of the Indebtedness secured by any and all such
purchase money security interests shall not at any time exceed,
together with Indebtedness permitted under subsection 8.6(e), $500,000;
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(j) Liens securing obligations in respect of capital leases on
assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
(k) Liens arising solely by virtue of any statutory or common
law provision relating to Lender's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that, except for
deposits serving as cash collateral for Letters of Credit, (i) such
deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by Borrower in excess of those
set forth by regulations promulgated by the FRB, and (ii) such deposit
account is not intended by any Borrower or any Subsidiary to provide
collateral to the depository institution;
(l) Liens on any property securing Indebtedness permitted to
be incurred pursuant to subsections 8.6(d) and (g).
8.2 NEGATIVE PLEDGE AGREEMENTS. No Borrower shall, or shall suffer or
permit any Subsidiary to, directly or indirectly, become subject to any
contractual restriction (other than restrictions set forth in this Agreement)
that would limit or preclude such Borrower or such Subsidiary from granting
liens on its assets to secure Indebtedness that is senior in right of payment to
the Senior Subordinated Notes.
8.3 DISPOSITION OF ASSETS. No Borrower shall, or shall suffer or permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale of equipment to the extent that such equipment is
exchanged for credit against the purchase price of similar replacement
equipment, or the proceeds of such sale are reasonably promptly applied
to the purchase price of such replacement equipment;
(c) dispositions of inventory by any Borrower or any
Subsidiary to any Borrower or any Subsidiary pursuant to reasonable
business requirements;
(d) transfers of assets by any Subsidiary to any Borrower; and
(e) dispositions not otherwise permitted hereunder which are
made for fair market value; provided, that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition, (ii) the aggregate sales price from such disposition shall
be paid in cash, and (iii) the aggregate value of all assets so sold by
Borrowers and their Subsidiaries, together, shall not exceed in any
fiscal year $500,000.
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8.4 CONSOLIDATIONS AND MERGERS. No Borrower shall, or shall suffer or
permit any Subsidiary to, merge, consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, or to liquidate or dissolve
its business, except:
(a) any Subsidiary may merge with any Borrower, provided that
Borrower shall be the continuing or surviving corporation, or with any
one or more Subsidiaries, provided that if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation; and
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to any Borrower or
another Wholly-Owned Subsidiary.
8.5 LOANS AND INVESTMENTS. No Borrower shall purchase or acquire, or
suffer or permit any Subsidiary to purchase or acquire, or make any commitment
therefor, any capital stock, equity interest, or any obligations or other
securities of, or any interest in, any Person, or make or commit to make any
Acquisitions, or make or commit to make any advance, loan, extension of credit
or capital contribution to or any other investment in, any Person including any
Affiliate of any Borrower (together, "Investments"), except for:
(a) Investments held by any Borrower or Subsidiary in the form
of cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services
in the ordinary course of business;
(c) extensions of credit by any Borrower to any of its
Wholly-Owned Subsidiaries or by any of its Wholly-Owned Subsidiaries to
another of its Wholly-Owned Subsidiaries;
(d) Investments incurred in order to consummate Acquisitions
otherwise permitted herein, provided that (i) Borrowers deliver to the
Agent not less than 30 days prior written notice of any such
Acquisition, (ii) No Default or Event of Default shall have occurred
and be continuing or would occur or exist upon consummation of the
Acquisition, (iii) Borrowers deliver to Agent not less than ten
Business Days prior to the effective date of the Acquisition
calculations in reasonable detail and in form and content acceptable to
Agent demonstrating compliance on a pro-forma basis with the covenants
contained in Sections 8.17 and 8.18 for the 12-month period immediately
preceding the proposed effective date of the Acquisition or the
12-month period immediately following the proposed effective date of
the Acquisition calculated on the basis that the Acquisition had
occurred effective as of the first day of each of such 12-month
periods, (iv) Borrowers deliver to Agent not less than ten Business
Days prior to the effective date of the Acquisition calculations in
reasonable detail
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and in form and content acceptable to Agent demonstrating that
Borrower's Consolidated Total Funded Debt to Cash Flow Ratio would not
exceed 3.25 to 1.0 immediately after the consummation of such
Acquisition, (v) the total consideration paid for any such Acquisition
(including the assumption of Indebtedness) shall not exceed $30,000,000
at the time of such Investment, (vi) such Acquisitions are undertaken
in accordance with all applicable Requirements of Law, and (vii) the
prior, effective written consent or approval to such Acquisition of the
board of directors or equivalent governing body of the acquiree is
obtained, and provided, further, that with respect to any Acquisitions
as to which the conditions set forth in the foregoing clauses (i)
through (iv) and (vi) and (vii) are satisfied but the total
consideration paid exceeds the limitation set forth in the foregoing
clause (v), Lenders and Agent agree that their consent thereto will not
be unreasonably withheld; and
(e) Investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations.
8.6 LIMITATION ON INDEBTEDNESS. No Borrower shall, or shall suffer or
permit any Subsidiary to, create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to Section 8.9;
(c) Indebtedness evidenced by the Senior Subordinated Notes;
(d) Indebtedness existing on the Closing Date and set forth in
Schedule 8.6;
(e) Indebtedness secured by Liens permitted by subsection
8.1(i) in an aggregate amount outstanding not to exceed $500,000;
(f) Indebtedness incurred in connection with leases permitted
pursuant to Section 8.11;
(g) Indebtedness secured by Liens permitted under subsection
8.1(l) in an aggregate amount outstanding not to exceed the remainder
of (i) $7,000,000, minus (ii) the sum of (x) the outstanding principal
amount of Indebtedness described in subsection 8.6(d) and 8.6(e), plus
(y) the amount of all Liens permitted under subsection 8.1(g); and
(h) Indebtedness which is unsecured and incurred for business
purposes in an aggregate amount outstanding not to exceed the remainder
of (i) $15,000,000, minus (ii) the sum of (x) the existing amount of
Indebtedness referred to in subsection 8.6(b), plus (y) the outstanding
principal amount of Indebtedness permitted under subsection 8.6(g).
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8.7 TRANSACTIONS WITH AFFILIATES. No Borrower shall, or and shall
suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of Borrower, except upon fair and reasonable terms no less favorable
to such Borrower or such Subsidiary than would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of such Borrower or such
Subsidiary; provided, however, that the provisions of this Section 8.7 shall not
preclude the loans to certain executive officers of Holding Co. described on
Schedule 8.7, or any transaction between Borrowers.
8.8 USE OF PROCEEDS. No Borrower shall, or shall suffer or permit any
Subsidiary to, use any portion of the Loan proceeds, directly or indirectly, (i)
to purchase or carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of any Borrower or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to acquire any security in any transaction that is subject
to Section 13 or 14 of the Exchange Act.
8.9 CONTINGENT OBLIGATIONS. No Borrower shall, or shall suffer or
permit any Subsidiary to, create, incur, assume or suffer to exist any
Contingent Obligations except:
(a) endorsements for collection or deposit in the ordinary
course of business;
(b) Permitted Swap Obligations;
(c) Contingent Obligations of Borrowers and their Subsidiaries
existing as of the Closing Date and listed in Schedule 8.9; and
(d) L/C Obligations.
8.10 JOINT VENTURES. No Borrower shall, or shall suffer or permit any
Subsidiary to enter into any Joint Venture, other than in the ordinary course of
business and other than foreign joint ventures related to the current lines of
business of Borrowers and their Subsidiaries.
8.11 LEASE OBLIGATIONS. No Borrower shall, or shall suffer or permit
any Subsidiary to, create or suffer to exist any obligations for the payment of
rent for any property under lease or agreement to lease, except for:
(a) leases of Borrowers and of Subsidiaries in existence on
the Closing Date and any renewal, extension or refinancing thereof;
(b) operating leases entered into by any Borrower or any
Subsidiary after the Closing Date in the ordinary course of business;
(c) leases entered into by any Borrower or any Subsidiary
after the Closing Date pursuant to sale-leaseback transactions
permitted under subsection 8.3(e);
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(d) capital leases other than those permitted under clauses
(a) and (c) of this Section, entered into by any Borrower or any
Subsidiary after the Closing Date to finance the acquisition of
equipment; provided that the aggregate annual rental payments for all
such capital leases shall not exceed in any Fiscal Year $5,000,000.
8.12 RESTRICTED PAYMENTS. No Borrower shall, or shall suffer or permit
any Subsidiary to, declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
shares of any class of its capital stock, or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any warrants, rights or
options to acquire such shares, now or hereafter outstanding; except that:
(a) any Borrower and any Wholly-Owned Subsidiary may declare
and make dividend payments or other distributions payable solely in its
common stock;
(b) any Borrower and any Wholly-Owned Subsidiary may purchase,
redeem or otherwise acquire shares of its common stock or warrants or
options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock;
(c) any Borrower and any Wholly-Owned Subsidiary may declare
or pay cash dividends to its stockholders, provided, that, (i)
immediately after giving effect to such proposed action, no Default or
Event of Default would exist, and (ii) the aggregate amount of such
dividends paid after January 31, 1998 may not exceed 35% of the
cumulative Consolidated Net Income arising after January 31, 1998;
(d) Holding Co. may purchase, redeem or otherwise acquire
shares of its common stock, provided (i) immediately after giving
effect to such acquisition of stock no Default or Event of Default
would exist and (ii) the aggregate consideration paid for all such
acquisitions of stock does not exceed the sum of (x) $15,000,000, plus
(y) 35% of the aggregate positive Consolidated Net Income arising after
January 31, 1998 and computed on a cumulative consolidated basis and
calculated for purposes of this subsection 8.12(d) without reduction
for any repurchase premiums incurred in connection with purchases of
the Senior Subordinated Notes; and
(e) any Subsidiary may pay dividends to any Borrower.
8.13 ERISA. No Borrower shall, or shall suffer or permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably expected to result in liability of Borrowers in an aggregate
amount in excess of $100,000; or (b) engage in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.
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8.14 CHANGE IN BUSINESS. No Borrower shall, or shall suffer or permit
any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by Borrower and its
Subsidiaries on the date hereof.
8.15 ACCOUNTING CHANGES. No Borrower shall, or shall suffer or permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP, or change the fiscal year of
any Borrower or of any Subsidiary.
8.16 AMENDMENT OF INDENTURE. Borrowers shall not participate in or
permit any modification of the Indenture which would in any respect amend,
modify or impair the extent and manner in which the subordination provisions of
the Indenture extend to the benefit of the Lenders with respect to the
Obligations.
8.17 CONSOLIDATED FUNDED DEBT TO CASH FLOW RATIO. Borrowers shall not
permit their Consolidated Total Funded Debt to Cash Flow Ratio as of the end of
any Fiscal Quarter to exceed 3.5 to 1.0.
8.18 CONSOLIDATED INTEREST COVERAGE RATIO. Borrowers shall not permit
their Consolidated Interest Coverage Ratio for any period of four consecutive
Fiscal Quarters to be less than 3.5 to 1.0.
ARTICLE 9
EVENTS OF DEFAULT
9.1 EVENT OF DEFAULT. Any of the following shall constitute an "Event
of Default":
(a) NON-PAYMENT. Borrowers fail to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of
any L/C Obligation, or (ii) within five days after the same becomes
due, any interest, fee or any other amount payable hereunder or under
any other Loan Document; or
(b) REPRESENTATION OR WARRANTY. Any representation or warranty
by any Borrower or any Subsidiary made or deemed made herein, in any
other Loan Document, or which is contained in any certificate, document
or financial or other statement by any Borrower, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in
or under any other Loan Document, is incorrect in any material respect
on or as of the date made or deemed made; or
(c) SPECIFIC DEFAULTS. Any Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section
7.1, 7.2, 7.3 or 7.9 or in Article 8; or
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(d) OTHER DEFAULTS. Any Borrower or any Subsidiary party
thereto fails to perform or observe any other term or covenant
contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of 20 days after the
date upon which written notice thereof is given to Borrowers by the
Agent or any Lender; or
(e) CROSS-DEFAULT. Any Borrower or any Subsidiary (A) fails to
make any payment in respect of any Indebtedness or Contingent
Obligation, having an aggregate principal amount (including undrawn or
available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than $3,000,000
when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after
the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure; or (B) fails to perform
or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to
any such Indebtedness or Contingent Obligation, and such failure
continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the
effect of such failure, event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated
maturity, or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; or
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. Any Borrower or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Borrower or any
Subsidiary, or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of any
Borrower's or any Subsidiary's properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of
attachment, execution or similar process shall not be released, vacated
or fully bonded within 60 days after commencement, filing or levy; (ii)
any Borrower or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for
relief (or similar order under non-U.S. law) is ordered in any
Insolvency Proceeding; or (iii) any Borrower or any Subsidiary
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor),
or other similar Person for itself or a substantial portion of its
property or business; or
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(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of any Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $100,000, (ii) the aggregate amount
of Unfunded Pension Liability among all Pension Plans at any time
exceeds $100,000; or (iii) any Borrower or any ERISA Affiliate shall
fail to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $100,000; or
(i) MONETARY JUDGMENTS. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards is
entered against any Borrower or any Subsidiary involving in the
aggregate a liability (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents
or conditions, of $1,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of 10
days after the entry thereof; or
(j) NON-MONETARY JUDGMENTS. Any non-monetary judgment, order
or decree is entered against any Borrower or any Subsidiary which does
or could reasonably be expected to have a Material Adverse Effect, and
there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) CHANGE OF CONTROL. There occurs any Change of Control; or
(l) LOSS OF LICENSES. Any Governmental Authority revokes or
fails to renew any material license, permit or franchise of any
Borrower or any Subsidiary, or any Borrower or any Subsidiary for any
reason loses any material license, permit or franchise, or any Borrower
or any Subsidiary suffers the imposition of any restraining order,
escrow, suspension or impound of funds in connection with any
proceeding (judicial or administrative) with respect to any material
license, permit or franchise; or
(m) INVALIDITY OF SUBORDINATION PROVISIONS. The subordination
provisions of the Indenture (at any time when any of the Senior
Subordinated Notes remain outstanding) or any agreement or instrument
governing any other Subordinated Debt is for any reason revoked or
invalidated, or otherwise cease to be in full force and effect, any
Person contests in any manner the validity or enforceability thereof or
denies that it has any further liability or obligation thereunder, or
the Indebtedness hereunder is for any reason subordinated or does not
have the priority contemplated by this Agreement or such subordination
provisions.
9.2 REMEDIES. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Lenders,
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(a) declare the commitment of each Lender to make Loans
(including the commitment of the Swing Line Lender to make Swing Line
Loans) and the obligation of each Issuing Lender to Issue Letters of
Credit to be terminated, whereupon such commitments and obligation
shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing
under all outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, and declare the unpaid
principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by Borrowers; and
(c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents
or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 8.1 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans and the obligation of the Issuing Lender to Issue Letters
of Credit shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent, the
Issuing Lender or any other Lender.
9.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE 10
THE AGENT
10.1 APPOINTMENT AND AUTHORIZATION; "AGENT".
(a) Each Lender hereby irrevocably (subject to Section 10.9)
appoints, designates and authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Agent have or be deemed to have 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 Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with
reference to the Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the
Agent may agree at the request of the Majority Lenders to act for the
Issuing Lender with respect thereto; provided, however, that the
Issuing Lender shall have all of the benefits and immunities (i)
provided to the Agent in this Article 10 with respect to any acts taken
or omissions suffered by the Issuing Lender in connection with Letters
of Credit Issued by it or proposed to be Issued by it and the
application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent", as used in this
Article 10, included the Issuing Lender with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with
respect to the Issuing Lender.
(c) The Swing Line Lender shall have all of the benefits and
immunities (i) provided to the Agent in this Article 10 with respect to
any acts taken or omissions suffered by the Swing Line Lender in
connection with Swing Line Loans made or proposed to be made by it as
fully as if the term "Agent", as used in this Article 10, included the
Swing Line Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to the Swing Line
Lender.
10.2 DELEGATION OF DUTIES. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.3 LIABILITY OF AGENT. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any
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other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct), or (ii) be responsible in any manner to
any of the Lenders for any recital, statement, representation or warranty made
by any Borrower or any Subsidiary or Affiliate of any Borrower, or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall 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 any Borrower or any Subsidiary or Affiliate of any Borrower.
10.4 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to Borrowers), independent accountants and
other experts selected by the Agent. The 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 Majority Lenders as it deems appropriate and, if it
so requests, 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
Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Lenders and such
request and any action taken or failure to act pursuant thereto shall
be binding upon all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Agent
to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender.
10.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Agent for the account of the Lenders, unless the Agent shall have
received written notice from a Lender or Borrowers referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Lenders of its receipt of any
such notice. The Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Lenders in
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accordance with Article 9; provided, however, that unless and until the Agent
has received any such request, the 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 or in the best interest
of the Lenders, except to the extent that this Agreement expressly requires that
such action be taken or not be taken, only with the consent or upon the
authorization of the Majority Lenders.
10.6 CREDIT DECISION. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by the Agent hereinafter taken, including any review of the affairs of
Borrowers and their Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
credit worthiness of Borrowers and their Subsidiaries, and all applicable Lender
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrowers
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and credit worthiness of Borrowers.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Agent, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or credit worthiness of Borrowers which may come into the possession
of any of the Agent-Related Persons.
10.7 INDEMNIFICATION OF AGENT. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrowers
and without limiting the obligation of Borrowers to do so), pro rata, from and
against any and all Indemnified Liabilities; provided, however, that no Lender
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of Borrowers. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
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10.8 AGENT IN INDIVIDUAL CAPACITY. BA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with any Borrower and its
Subsidiaries and Affiliates as though BA were not the Agent, the Swing Line
Lender or the Issuing Lender hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, BA or its
Affiliates may receive information regarding any Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Borrower or such Affiliates) and acknowledge that the Agent shall
be under no obligation to provide such information to them. With respect to its
Loans, BA shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Agent, the
Swing Line Lender or the Issuing Lender, and the terms "Lender" and "Lenders"
include BA in its individual capacity.
10.9 SUCCESSOR AGENT. The Agent may, and at the request of the Majority
Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If the Agent
resigns under this Agreement, the Majority Lenders shall appoint from among the
Lenders a successor agent for the Lenders which successor agent shall be
approved by Borrowers. If no successor agent is appointed prior to the effective
date of the resignation of the Agent, the Agent may appoint, after consulting
with the Lenders and Borrowers, a successor agent from among the Lenders. Upon
the acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring Agent
and the term "Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article 10 and
Sections 11.4 and 11.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is 30 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Agent hereunder until such time, if any, as the
Majority Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, BA may not be removed as the Agent at
the request of the Majority Banks unless BA and any applicable Affiliate shall
also simultaneously be replaced as "Swing Line Lender" and as "Issuing Lender"
hereunder pursuant to documentation in form and substance reasonably
satisfactory to BA.
10.10 WITHHOLDING TAX.
(a) If any Lender is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Lender claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Agent, to
deliver to the Agent:
(i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed copies of IRS Form
1001 before the payment of any interest in the first
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calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be
paid under this Agreement;
(ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade
or business of such Lender, two properly completed and
executed copies of IRS Form 4224 before the payment of any
interest is due in the first taxable year of such Lender and
in each succeeding taxable year of such Lender during which
interest may be paid under this Agreement; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Lender agrees to promptly notify the Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form
1001 and such Lender sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations of Borrowers to such
Lender, such Lender agrees to notify the Agent of the percentage amount
in which it is no longer the beneficial owner of Obligations of
Borrowers to such Lender. To the extent of such percentage amount, the
Agent will treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
Obligations of Borrowers to such Lender, such Lender agrees to
undertake sole responsibility for complying with the withholding tax
requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to
such Lender an amount equivalent to the applicable withholding tax
after taking into account such reduction. However, if the forms or
other documentation required by subsection (a) of this Section are not
delivered to the Agent, then the Agent may withhold from any interest
payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax imposed by
Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did
not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or was not
properly executed, or because such Lender failed to notify the Agent of
a change in
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circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify the Agent fully for all amounts paid, directly or indirectly,
by the Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable
to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this
subsection shall survive the payment of all Obligations and the
resignation or replacement of the Agent.
10.11 DOCUMENTATION AGENT. The Lender identified on the facing page or
signature pages of this Agreement or any related document as the "Documentation
Agent" shall not have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, the Lender so identified as the "Documentation
Agent" shall not have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
the Lender so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
10.12 SYNDICATION AGENT. The Lender identified on the facing page or
signature pages of this Agreement or any related document as the "Syndication
Agent" shall not have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, the Lender so identified as the "Syndication
Agent" shall not have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
the Lender so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
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ARTICLE 11
MISCELLANEOUS
11.1 AMENDMENT AND RESTATEMENT; AMENDMENTS AND WAIVERS.
(a) This Agreement amends and restates in its entirety the
Existing Credit Agreement and, upon the effectiveness of this
Agreement, the terms and provisions of the Existing Credit Agreement
shall, subject to this Section 11.1(a), be superseded hereby and
thereby. All references to "Credit Agreement" contained in the other
Loan Documents delivered in connection with the Existing Credit
Agreement shall be deemed to refer to this Second Amended and Restated
Credit Agreement. Notwithstanding the amendment and restatement of the
Existing Credit Agreement by this Agreement, the Obligations owing to
the Lenders and the Agent by Borrower under the Existing Credit
Agreement remain outstanding as of the date hereof and constitute
continuing Borrowers' Obligations hereunder. The Obligations shall in
all respects be continuing, and this Agreement shall not be deemed to
evidence or result in a novation or repayment and reborrowing of the
Obligations. In furtherance of and without limiting the foregoing, from
and after the date of this Agreement, the terms, conditions and
covenants governing the Obligations shall be solely as set forth in
this Agreement, which shall supersede the Existing Credit Agreement in
its entirety.
(b) No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent with respect to any
departure by any Borrower or any applicable Subsidiary therefrom, shall
be effective unless the same shall be in writing and signed by the
Majority Lenders (or by the Agent at the written request of the
Majority Lenders) and Borrowers and acknowledged by the Agent, and then
any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment, or consent shall, unless in
writing and signed by all the Lenders and Borrowers and acknowledged by
the Agent, do any of the following:
(i) increase (except pursuant to Section 2.15) or
extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.2);
(ii) postpone or delay any date fixed by this
Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document;
(iii) reduce the principal of, or the rate of
interest specified herein on any Loan, or any fees or other
amounts payable hereunder or under any other Loan Document;
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(iv) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Loans which is
required for the Lenders or any of them to take any action
hereunder; or
(v) amend this Section, or Section 2.13, or any
provision herein providing for consent or other action by all
Lenders;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Majority
Lenders or all the Lenders, as the case may be, affect the rights or
duties of the Agent under this Agreement or any other Loan Document,
(ii) no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Lender in addition to the Majority Lenders or all
Lenders, as the case may be, affect the rights or duties of the Issuing
Lender under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, and (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line
Lender in addition to the Majority Lenders or all Lenders, as the case
may be, affect the rights or duties of the Swing Line Lender under this
Agreement or any other Loan Document.
11.2 NOTICES.
(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that
any matter transmitted by Borrowers or Borrower Representative by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule 11.2, and (ii) shall be
followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered, to the address or facsimile number
specified for notices on Schedule 11.2; or, as directed to Borrowers or
the Agent, to such other address as shall be designated by such party
in a written notice to the other parties, and as directed to any other
party, at such other address as shall be designated by such party in a
written notice to Borrowers and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if
delivered, upon delivery; except that notices pursuant to Article 2 or
10 to the Agent shall not be effective until actually received by the
Agent.
(c) Any agreement of the Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of Borrowers. The Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by Borrowers to give such notice and the Agent
and the Lenders shall not have any liability to Borrowers or other
Person on account of any action taken or not
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taken by the Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of Borrowers to repay the Loans and
L/C Obligations shall not be affected in any way or to any extent by
any failure by the Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by
the Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Agent and the Lenders to be contained in
the telephonic or facsimile notice.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Agent or any Lender, any right, remedy,
power or privilege hereunder, 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.
11.4 COSTS AND EXPENSES. Borrowers shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BA (including in its capacity as Agent)
and each Lender within five Business Days after demand (subject to
subsection 5.1(f)) for all reasonable costs and expenses incurred by BA
(including in its capacity as Agent, Swing Line Lender, Issuing Lender
and a Lender) and each Lender in connection with the development,
preparation, delivery and execution of, and any amendment, supplement,
waiver or modification to (in each case, whether or not consummated),
this Agreement, any Loan Document and any other documents prepared in
connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable
Attorney Costs incurred by BA (including in its capacity as Agent,
Swing Line Lender, Issuing Lender and a Lender) and any Lender with
respect thereto; provided, however, that each Lender, other than Agent,
shall seek to avoid duplication of efforts in order to limit the fees
and expenses payable hereunder; and
(b) pay or reimburse the Agent and each Lender within five
Business Days after demand (subject to subsection 5.1(e)) for all
reasonable costs and expenses (including Attorney Costs) incurred by
them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any
other Loan Document during the existence of an Event of Default or
after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
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11.5 BORROWERS' INDEMNIFICATION. Whether or not the transactions
contemplated hereby are consummated, each Borrower, jointly and severally, shall
indemnify, defend and hold the Agent-Related Persons, and each Lender and each
of its respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time (including at any
time following repayment of the Loans, the termination of the Letters of Credit
and the termination, resignation or replacement of the Agent or replacement of
any Lender) be imposed on, incurred by or asserted against any such Person in
any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Loans or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that
Borrowers shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations.
11.6 PAYMENTS SET ASIDE. To the extent that Borrowers make a payment to
the Agent or the Lenders, or the Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Lender in its discretion) to be repaid to a trustee, receiver or
any other party, in connection with any Insolvency Proceeding or otherwise, then
(a) to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Agent upon demand its pro rata share
of any amount so recovered from or repaid by the Agent.
11.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that Borrowers may not assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of the Agent and each Lender.
11.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
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(a) Any Lender may, with the written consent of the Borrowers
(at all times other than during the existence of an Event of Default)
and Agent, which consents shall not be unreasonably withheld, at any
time assign and delegate to one or more Eligible Assignees (provided
that no written consent of the Agent or the Borrowers shall be required
in connection with any assignment and delegation by a Lender to an
Eligible Assignee that is an Affiliate of such Lender) (each an
"Assignee") all, or any ratable part of all, of the Loans, the
Commitments and the other rights and obligations of such Lender
hereunder, in a minimum amount equal to the lesser of (i) $5,000,000 or
(ii) the remaining amount of such Lender's Commitments; provided,
however, that Borrowers and the Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together
with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to Borrowers and the
Agent by such Lender and the Assignee; (ii) such Lender and its
Assignee shall have delivered to Borrowers and the Agent an Assignment
and Acceptance in the form of Exhibit F ("Assignment and Acceptance"),
together with any Note or Notes subject to such assignment, and (iii)
the assignor Lender or Assignee has paid to the Agent a processing fee
in the amount of $2,500.
(b) From and after the date that the Agent notifies the
assignor Lender that it has received (and provided its consent with
respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance,
shall have the rights and obligations of a Lender under the Loan
Documents, and (ii) the assignor Lender shall, to the extent that
rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Agent that it has received an executed Assignment and Acceptance
and payment of the processing fee, Borrowers shall execute and deliver
to the Agent, new Notes evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Lender has retained a portion of its
Loans and its Commitment, replacement Notes in the principal amount of
the Loans retained by the assignor Lender (such Notes to be in exchange
for, but not in payment of, the Notes held by such Lender). Immediately
upon each Assignee's making its processing fee payment under the
Assignment and Acceptance, this Agreement shall be deemed to be amended
to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each
Assignee shall reduce such Commitments of the assigning Lender pro
tanto.
(d) Any Lender may at any time sell to one or more commercial
Lenders or other Persons not Affiliates of Borrowers (a "Participant")
participating interests in any Loans, the Commitment of that Lender and
the other interests of that Lender (the "originating Lender")
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hereunder and under the other Loan Documents; provided, however, that
(i) the originating Lender's obligations under this Agreement shall
remain unchanged, (ii) the originating Lender shall remain solely
responsible for the performance of such obligations, (iii) Borrowers
and the Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights
and obligations under this Agreement and the other Loan Documents, and
(iv) no Lender shall transfer or grant any participating interest under
which the Participant has rights to approve any amendment to, or any
consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would
require unanimous consent of the Lenders as described in the first
proviso to Section 11.1. In the case of any such participation, the
Participant shall be entitled to the benefit of Sections 4.1, 4.3 and
11.5 as though it were also a Lender hereunder, and if amounts
outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of
set-off 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.
(e) Notwithstanding any other provision in this Agreement, any
Lender may at any time create a security interest in, or pledge, all or
any portion of its rights under and interest in this Agreement and the
Note held by it in favor of any Federal Reserve Lender in accordance
with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
?203.14, and such Federal Reserve Lender may enforce such pledge or
security interest in any manner permitted under applicable law.
11.9 CONFIDENTIALITY. Each Lender agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by Borrowers and provided to it by any Borrower or any Subsidiary, or
by the Agent on such Borrower's or such Subsidiary's behalf, under this
Agreement or any other Loan Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Loan Documents or in connection with other
business now or hereafter existing or contemplated with any Borrower or any
Subsidiary; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Lender, or
(ii) was or becomes available on a non-confidential basis from a source other
than any Borrower, provided that such source is not bound by a confidentiality
agreement with any Borrower known to the Lender; provided, however, that any
Lender may disclose such information (A) at the request or pursuant to any
requirement of any Governmental Authority to which the Lender is subject or in
connection with an examination of such Lender by any such authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which the Agent, any Lender or their respective Affiliates may be party; (E) to
the extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Lender's independent
auditors and other professional advisors; (G) to any Participant or Assignee,
actual or
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potential, provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Lenders hereunder; (H) as to any
Lender or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which any Borrower or any
Subsidiary is party or is deemed party with such Lender or such Affiliate; and
(I) to its Affiliates.
11.10 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Lender is authorized at any time and from time to time,
without prior notice to Borrowers, any such notice being waived by Borrowers to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of any Borrower against any and all Obligations owing to such
Lender, now or hereafter existing, irrespective of whether or not the Agent or
such Lender shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Lender agrees
promptly to notify Borrowers and the Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
11.11 AUTOMATIC DEBITS OF FEES. With respect to any fee, or any other
cost or expense (including Attorney Costs) due and payable to the Agent, Issuing
Lender or BA under the Loan Documents, Borrowers hereby irrevocably authorize BA
to debit any deposit account of any Borrower with BA in an amount such that the
aggregate amount debited from all such deposit accounts does not exceed such fee
or other cost or expense. If there are insufficient funds in such deposit
accounts to cover the amount of the fee or other cost or expense then due, such
debits will be reversed (in whole or in part, in BA's sole discretion) and such
amount not debited shall be deemed to be unpaid. No such debit under this
Section shall be deemed a set-off.
11.12 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Lender
shall notify the Agent in writing of any changes in the address to which notices
to the Lender should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
11.13 COUNTERPARTS. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
11.14 SEVERABILITY. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.15 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and legal benefit of Borrowers, the Lenders, the
Agent and the Agent-Related Persons,
83
<PAGE> 90
and their permitted successors and assigns, and no other Person shall be a
direct or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents.
11.16 DESIGNATED SENIOR INDEBTEDNESS. The Obligations are hereby
designated by Borrowers as "Designated Senior Indebtedness", as defined in the
Indenture.
11.17 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS;
PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT
OF ILLINOIS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
BORROWERS, THE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH OF BORROWERS, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. BORROWERS,
THE AGENT AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY ILLINOIS LAW.
11.18 WAIVER OF JURY TRIAL. BORROWERS, THE LENDERS AND THE AGENT EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. BORROWERS, THE
LENDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION,
84
<PAGE> 91
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
11.19 JOINT AND SEVERAL LIABILITY. Each Borrower hereby agrees that
such Borrower is jointly and severally liable for the full and prompt payment
(whether at stated maturity, by acceleration or otherwise) and performance of,
all Obligations owed or hereafter owing to the Agent and the Lenders by each
other Borrower.
11.20 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among Borrowers, the
Lenders and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
85
<PAGE> 92
IN WITNESS WHEREOF, the Borrowers, the Lenders and the Agent have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
SPECIALTY EQUIPMENT COMPANIES, BANK OF AMERICA NATIONAL
INC. TRUST AND SAVINGS ASSOCIATION,
as Agent
By:
-------------------------------
Name: By:
------------------------ --------------------------------
Title: Name:
----------------------- -------------------------
Title:
------------------------
SPECIALTY EQUIPMENT BANK OF AMERICA NATIONAL
MANUFACTURING CORPORATION TRUST AND SAVINGS ASSOCIATION,
as a Lender
By:
-------------------------------
Name: By:
------------------------ --------------------------------
Title: Name:
----------------------- -------------------------
Title:
------------------------
THE FIRST NATIONAL BANK OF
CHICAGO,
as Documentation Agent and as a
Lender
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Lender
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
86
<PAGE> 93
HARRIS TRUST AND SAVINGS BANK,
as a Lender
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
ABN AMRO BANK N.V., as a Lender
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
By:
--------------------------------
Name:
-------------------------
Title:
------------------------
87
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<FISCAL-YEAR-END> JAN-31-1998
<PERIOD-START> AUG-01-1998
<PERIOD-END> OCT-31-1998
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0
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