<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
[ ] 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 001-13797
HAWK CORPORATION
----------------
(Exact name of Registrant as specified in its charter)
DELAWARE 34-1608156
-------- ----------
(State of incorporation) (I.R.S. Employer Identification No.)
200 Public Square, Suite 30-5000, Cleveland, Ohio 44114
-------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(216) 861-3553
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements 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. As of the date of this report,
the Registrant had the following number of shares of common stock outstanding:
Class A Common Stock, $0.01 par value: 9,187,750
Class B Common Stock, $0.01 par value: None (0)
1
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INDEX
<TABLE>
<CAPTION>
PAGE
----
PART I. FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Financial Statements (Unaudited) 3
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 20
Item 3. Quantitative and Qualitative Disclosures about Market Risk 24
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 25
Item 2. Changes in Securities and Use of Proceeds 25
Item 6. Exhibits and Reports on Form 8-K 26
SIGNATURES 28
</TABLE>
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM I. FINANCIAL STATEMENTS (UNAUDITED)
HAWK CORPORATION
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, 1998 DECEMBER 31, 1997
(UNAUDITED) (NOTE)
----------- ------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 15,961 $ 4,388
Accounts receivable, less allowance of $384 & $321, respectively 29,058 25,746
Inventories 23,297 22,083
Deferred income taxes 2,830 2,833
Other current assets 1,439 1,375
----------- -----------
Total current assets 72,585 56,425
Property, plant & equipment:
Land 1,225 1,218
Buildings and improvements 11,656 10,877
Machinery and equipment 63,805 57,104
Furniture and fixtures 2,738 2,326
Construction in progress 6,233 1,914
----------- -----------
85,657 73,439
Less accumulated depreciation 24,609 20,959
----------- -----------
Total property, plant and equipment 61,048 52,480
Other assets:
Intangible assets 62,124 56,539
Net assets held for sale 3,604 3,604
Shareholder notes 1,010 1,675
Other 2,260 2,363
----------- -----------
Total other assets 68,998 64,181
----------- -----------
Total assets $ 202,631 $173,086
=========== ===========
</TABLE>
3
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HAWK CORPORATION
CONSOLIDATED BALANCE SHEETS -- (CONTINUED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, 1998 DECEMBER 31, 1997
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT) (UNAUDITED) (NOTE)
------------- -----------------
<S> <C> <C>
Current liabilities:
Accounts payable $ 13,362 $ 10,369
Short term borrowings 1,471 1,744
Accrued compensation 7,310 8,069
Other accrued expenses 4,256 5,494
Current portion of long-term debt 6,880 1,955
--------- ---------
Total current liabilities 33,279 27,631
Long-term liabilities:
Long-term debt 100,074 130,193
Deferred income taxes 6,728 6,322
Other 1,874 1,811
--------- ---------
Total long-term liabilities 108,676 138,326
Detachable stock warrants, subject to put option 9,300
Shareholders' equity (deficit):
Preferred Stock 1
Series D preferred stock, $.01 par value and an aggregate
liquidation value of $1,530, plus any accrued and
unpaid dividends with 9.8% cumulative dividend
(1,530 shares authorized, issued and outstanding) 1
Class A common stock, $.01 par value; 75,000,000
shares authorized, 9,187,750 issued and outstanding 92 14
Class B common stock, $.01 par value, 10,000,000 shares
authorized, none issued or outstanding
Additional paid-in capital 55,054 1,964
Retained earnings (deficit) 6,697 (3,120)
Accumulated other comprehensive income (loss) (1,168) (1,030)
--------- ---------
Total shareholders' equity (deficit) 60,676 (2,171)
Total liabilities and shareholders' equity (deficit) $ 202,631 $ 173,086
========= =========
</TABLE>
Note: The balance sheet at December 31, 1997 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for complete
financial statements. See notes to consolidated financial statements.
4
<PAGE> 5
HAWK CORPORATION
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SIX MONTHS ENDED THREE MONTHS ENDED
JUNE 30, 1998 JUNE 30, 1997 JUNE 30, 1998 JUNE 30, 1997
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales $ 96,719 $ 76,981 $ 46,741 $ 40,097
Cost of sales 65,378 54,045 31,591 27,677
-------------- ------------- ------------- ------------
Gross profit 31,341 22,936 15,150 12,420
Selling, technical and administrative expenses 11,580 9,447 5,877 4,893
Amortization of intangibles 1,769 1,626 870 797
-------------- ------------- ------------- ------------
Total expenses 13,349 11,073 6,747 5,690
Income from operations 17,992 11,863 8,403 6,730
Interest expense 7,125 7,524 3,191 3,569
Interest income (491) (465) (381) (189)
Other expense, net 17 30 13 280
-------------- ------------- ------------- ------------
Income before income taxes and
extraordinary items 11,341 4,774 5,580 3,070
Income taxes 4,827 1,989 2,379 1,183
-------------- ------------- ------------- ------------
Income before extraordinary items 6,514 2,785 3,201 1,887
-------------- ------------- ------------- ------------
Extraordinary loss from retirement of debt and
write-off of deferred financing costs
relating to IPO, net of income tax 3,079 3,079
-------------- ------------- ------------- ------------
Net income $ 3,435 $ 2,785 $ 122 $ 1,887
============== ============= ============= ============
Earnings per share:
Basic:
Earnings before
extraordinary items 1.07 .56 .43 .39
Extraordinary items (.52) (.43)
-------------- ------------- ------------- ------------
Basic earnings per share $ .55 $ .56 $ .00 $ .39
============== ============= ============= ============
Diluted:
Earnings before
extraordinary items .95 .46 .41 .32
Extraordinary items (.46) (.41)
-------------- ------------- ------------- ------------
Diluted earnings per share $ .49 $ .46 $ .00 $ .32
============== ============= ============= ============
</TABLE>
See notes to consolidated financial statements.
5
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HAWK CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-----------------------------
1998 1997
---- ----
<S> <C> <C>
Cash flows from operating activities:
Net income $ 3,435 $ 2,785
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 5,467 4,826
Accretion of discount on debt 238 325
Extraordinary loss, net of tax 3,079
Changes in operating assets and liabilities, net:
Accounts receivable (1,929) (4,881)
Inventories (305) (2,013)
Other assets 69 1,067
Accounts payable 2,638 1,374
Other liabilities (689) (1,084)
------------- -------------
Net cash provided by operating activities 12,003 2,399
Cash flows from investing activities:
Business acquisitions (9,000) (10,639)
Purchases of property, plant and equipment (7,983) (3,793)
Payments received on shareholder notes 665 63
------------ ------------
Net cash used in investing activities (16,318) (14,369)
Cash flows from financing activities:
Payments on short-term debt (697)
Proceeds from borrowings on long-term debt 35,000
Net proceeds from issuance of common stock 53,168
Payments on long-term debt (66,964) (203)
Deferred financing costs (850) 112
Payments of preferred stock dividends (181) (160)
Prepayment premium on early retirement of debt (3,588)
Other 33
------------ ------------
Net cash provided by (used in) financing activities 15,888 (218)
------------ ------------
Net increase (decrease) in cash and cash equivalents 11,573 (12,188)
Cash and cash equivalents at beginning of period 4,388 25,774
------------ ------------
Cash and cash equivalents at end of period $ 15,961 $ 13,586
============ ============
</TABLE>
See notes to consolidated financial statements.
6
<PAGE> 7
HAWK CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
JUNE 30, 1998
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the period ended June 30, 1998 are not
necessarily indicative of the results that may be expected for the year ended
December 31, 1998. For further information, refer to the consolidated financial
statements and footnotes thereto included in the Form S-1 (Registration No.
333-40535) for Hawk Corporation ("Hawk" or the "Company") for the year ended
December 31, 1997.
The Company operates in one principal business segment, the design, engineering,
manufacturing and marketing of specialized components, principally made from
powder metals, for aerospace, industrial and other specialty applications.
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries and also include, effective August 1, 1997 and
June 1, 1998, the accounts of Sinterloy Corporation ("Sinterloy") and Clearfield
Powdered Metals, Inc., ("Clearfield") respectively. All significant
inter-company accounts and transactions have been eliminated in the
accompanying financial statements.
NOTE 2 - RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
Disclosures About Segments of an Enterprise and Related Information. This
statement establishes standards for reporting financial and descriptive
information about operating segments. Under SFAS No. 131, information pertaining
to the Company's operating segments will be reported on the basis that is used
internally for evaluating segment performance and making resource allocation
determinations. Management is currently studying the potential effects of
adoption of this statement, which is required in 1998.
NOTE 3 - COMPREHENSIVE INCOME
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
Reporting Comprehensive Income, which requires that an enterprise classify items
of other comprehensive income, as defined therein, by their nature in a
financial statement and display the accumulated balance of other comprehensive
income separately from retained earnings and additional paid-in capital in the
equity section of the balance sheet. The Company adopted SFAS No. 130 in the
first quarter of 1998. The principal difference between net income
7
<PAGE> 8
as historically reported in the consolidated statements of income and
comprehensive income is foreign currency translation recorded in shareholders'
equity. Comprehensive income is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------ ----------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income 122 1,887 $3,435 $2,785
Foreign currency translation 120 68 (138) (785)
---- ----- ------ ------
Comprehensive income 242 1,955 $3,297 $2,000
==== ===== ====== ======
</TABLE>
NOTE 4 - INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined by the
first-in, first-out (FIFO) method. The major components of inventories are as
follows:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1998 1997
---- ----
<S> <C> <C>
Raw materials and work-in-process $ 20,123 $ 18,690
Finished products 4,866 4,722
Inventory reserves (1,692) (1,329)
---------- ----------
$ 23,297 $ 22,083
========== ==========
</TABLE>
NOTE 5 - LONG-TERM DEBT
In May 1998, the Company retired all of its outstanding Senior Subordinated
Notes. In June 1998, the Company redeemed $35,000 of its then outstanding
$100,000, 10.25% Senior Notes due December 1, 2003. As a result of these
transactions, the Company incurred an extraordinary charge of $3,079, net of
income taxes, resulting from the premium paid in connection with the purchase of
the 10.25% Senior Notes and the write off of debt issuance costs associated with
the retirement of debt. In May 1998, the Company entered into a $35,000 Term
Loan Facility, with $1,250 maturing quarterly, beginning September 30, 1998 with
the remaining principal of $12,500 due on March 31, 2003. Additionally, in May
1998, the Company executed a $50,000 Revolving Credit Facility that matures
March 31, 2003. The Senior Notes, Term Loan and Revolving Credit Facility are
fully and unconditionally guaranteed on a joint and several basis by each of the
direct or indirect wholly-owned domestic subsidiaries of the Company ("Guarantor
Subsidiaries"). (See Note 10).
NOTE 6 - SHAREHOLDERS' EQUITY
In May 1998, the Company completed an initial public offering ("IPO") of
5,905,250 shares of common stock at an offering price to the public of $17.00
per share. In the IPO, 3,500,000 shares were sold by the Company and 2,405,250
shares were sold by certain of the Company's stockholders. The offering resulted
in an increase in shareholders' equity of $57,400.
8
<PAGE> 9
Concurrent with the IPO, the Company granted 316,700 option shares of Class A
Common Stock under its 1997 Stock Option Plan at an exercise price of $17.00 per
share. Options of 383,300 shares of Class A Common Stock remain available for
grant.
NOTE 7 - DETACHABLE STOCK WARRANTS, SUBJECT TO PUT OPTION
For financial reporting purposes at December 31, 1997, the carrying value of the
warrants, including the put option, was estimated to be $9,300 and classified as
detachable stock warrant, subject to put option on the accompanying balance
sheet. The warrant holders exercised their detachable stock warrants on May 11,
1998 for 1,023,793 shares of the Company's Common Stock, which were then sold as
part of the Company's IPO. The warrant holders' put option terminated upon the
closing of the Company's IPO.
NOTE 8 - INCREASE IN AUTHORIZED SHARES AND STOCK SPLIT
On January 12, 1998, the Company amended its Certificate of Incorporation to
increase the authorized shares of Class A and Class B Common Stock to 75,000,000
and 10,000,000, respectively. In addition, on January 12, 1998, the board of
directors declared a 3.2299-for-one split of the Company's Class A and Class B
Common Stock in the form of a stock dividend distributed to the holders of
record on January 12, 1998. Accordingly, the number of common shares and per
share data have been restated to reflect the stock split. The par value of the
additional shares of common stock issued in connection with the stock split was
credited to common stock and a like amount charged to additional paid in capital
in the first quarter of 1998.
NOTE 9 - EARNINGS PER SHARE
In February 1997, the Financial Accounting Standards Board issued SFAS No. 128,
Earnings per Share. SFAS No. 128 replaced the previously reported primary and
fully-diluted earnings per share with basic earnings per share and diluted
earnings per share. As required, the Company adopted SFAS No. 128 in the fourth
quarter of 1997. Prior amounts have been restated to comply with SFAS No. 128
and give effect to the stock split discussed in Note 8.
9
<PAGE> 10
Basic and dilutive earnings per share is computed as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED THREE MONTHS ENDED
JUNE 30, JUNE 30,
1998 1997 1998 1997
------------------------------------------------
<S> <C> <C> <C> <C>
Income available to common shareholders:
Income before extraordinary item $ 6,514 $ 2,785 $ 3,201 $ 1,887
Less: Preferred stock dividends 181 160 101 80
------------------------------------------------
Income before extraordinary item attributable to
common shareholders $ 6,333 $ 2,625 $ 3,100 $ 1,807
================================================
Net income 3,435 2,785 122 1,887
Less: Preferred stock dividends 181 160 101 80
------------------------------------------------
Net income attributable to common shareholders 3,254 2,625 21 1,807
================================================
Weighted average shares:
Basic:
Basic weighted average shares 5,914 4,664 7,150 4,664
================================================
Diluted:
Basic from above 5,914 4,664 7,150 4,664
Effect of warrant conversion 741 1,024 461 1,024
Effect of note conversion and options 14 29
------------------------------------------------
Diluted weighted average shares 6,669 5,688 7,640 5,688
================================================
Earnings per share:
Basic:
Earnings before extraordinary item $ 1.07 $ .56 $ .43 $ .39
Extraordinary item (.52) (.43)
------------------------------------------------
Basic earnings per share $ .55 $ .56 $ .00 $ .39
================================================
Diluted:
Earnings before extraordinary item $ .95 $ .46 $ .41 $ .32
Extraordinary item (.46) (.41)
------------------------------------------------
Diluted earnings per share $ .49 $ .46 $ .00 $ .32
================================================
</TABLE>
10
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NOTE 10 - SUPPLEMENTAL GUARANTOR INFORMATION
As discussed in Note 5, each of the Guarantor Subsidiaries has fully and
unconditionally guaranteed, on a joint and several basis the obligation to pay
principal, premium, if any, and interest with respect to the Notes. The
Guarantor Subsidiaries are direct, wholly-owned subsidiaries of the Company.
The following supplemental unaudited consolidating condensed financial
statements present (in thousands):
1. Consolidating condensed balance sheets as of June 30, 1998 and
December 31, 1997, consolidating condensed statements of income
for the three and six months ended June 30, 1998 and 1997 and
consolidating condensed statements of cash flows for the six
months ended June 30, 1998 and 1997.
2. Hawk Corporation (Parent), combined Guarantor Subsidiaries and
combined Non-Guarantor Subsidiaries (consisting of the Company's
subsidiaries in Canada and Italy) with their investments in
subsidiaries accounted for using the equity method.
3. Elimination entries necessary to consolidate the Parent and all
of its subsidiaries.
Management does not believe that separate financial statements of the Guarantor
Subsidiaries of the Notes are material to investors. Therefore, separate
financial statements and other disclosures concerning the Guarantor Subsidiaries
are not presented.
11
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SUPPLEMENTAL CONSOLIDATING CONDENSED
BALANCE SHEET (UNAUDITED)
<TABLE>
<CAPTION>
JUNE 30, 1998
------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS
- ------
Current assets:
Cash and cash equivalents $ 14,914 $ 64 $ 983 $ 15,961
Accounts receivable, net 36 21,616 7,406 29,058
Inventories, net 18,516 4,781 23,297
Deferred income taxes 2,435 395 2,830
Other current assets 66 556 817 1,439
----------- ----------- ----------- ----------- -----------
Total current assets 17,451 40,752 14,382 72,585
Other assets:
Investment in subsidiaries 791 5,778 $ (6,569)
Inter-company advances, net 142,122 36 (142,158)
Property, plant and equipment 53,384 7,664 61,048
Intangible assets 227 61,897 62,124
Other 1,010 6,544 433 (1,113) 6,874
----------- ----------- ----------- ------------ -----------
Total assets $ 161,601 $ 168,355 $ 22,515 $ (149,840) $ 202,631
=========== =========== =========== ============ ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Accounts payable $ 10,001 $ 3,361 $ 13,362
Short term borrowings 150 1,321 1,471
Accrued compensation $ 44 5,858 1,408 7,310
Other accrued expenses (437) 4,451 242 4,256
Current portion of long-term debt 5,000 1,383 497 6,880
----- ----------- ----------- ----------- -----------
Total current liabilities 4,607 21,843 6,829 33,279
Long-term liabilities:
Long-term debt 95,000 3,477 1,597 100,074
Deferred income taxes 5,888 417 423 6,728
Other 772 1,102 1,874
Inter-company advances, net 1,125 135,360 6,786 $(143,271)
----------- ----------- ----------- ------------ -----------
Total long-term liabilities 102,013 140,026 9,908 (143,271) 108,676
Total liabilities 106,620 161,869 16,737 (143,271) 141,955
Shareholders' equity 54,981 6,486 5,778 (6,569) 60,676
----------- ----------- ----------- ------------ -----------
Total liabilities and
shareholders' equity $ 161,601 $ 168,355 $ 22,515 $ (149,840) $ 202,631
=========== =========== =========== ============ ===========
</TABLE>
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SUPPLEMENTAL CONSOLIDATING CONDENSED
BALANCE SHEET (UNAUDITED)
<TABLE>
<CAPTION>
DECEMBER 31, 1997
-------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
ASSETS
- ------
Current assets:
Cash and cash equivalents $ 3,103 $ 469 $ 816 $ 4,388
Accounts receivable, net 77 19,013 6,656 25,746
Inventories, net 17,455 4,628 22,083
Deferred income taxes 890 1,545 398 2,833
Other current assets 142 560 734 $ (61) 1,375
----------- ----------- ----------- ----------- -----------
Total current assets 4,212 39,042 13,232 (61) 56,425
Other assets:
Investment in subsidiaries 790 4,971 (5,761)
Inter-company advances, net 132,490 1,300 11 (133,801)
Property, plant and equipment 46,115 6,365 52,480
Intangible assets 231 56,308 56,539
Other 1,675 7,352 445 (1,830) 7,642
----------- ----------- ----------- ------------ -----------
Total assets $ 139,398 $ 155,088 $ 20,053 $ (141,453) $ 173,086
=========== =========== =========== =========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Accounts payable $ 7,156 $ 3,213 $ 10,369
Short term borrowings 1,744 1,744
Accrued compensation $ 64 7,189 816 8,069
Other accrued expenses (3,219) 8,582 247 $ (116) 5,494
Current portion of long-term debt 1,432 523 1,955
------------ ----------- ----------- ------------ ------------
Total current liabilities (3,155) 24,359 6,543 (116) 27,631
Long-term liabilities:
Long-term debt 127,025 2,001 1,167 130,193
Deferred income taxes 5,665 223 434 6,322
Other 780 1,031 1,811
Inter-company advances, net 2,986 126,683 5,907 (135,576)
------------ ----------- ----------- ------------ ------------
Total long-term liabilities 135,676 129,687 8,539 (135,576) 138,326
------------ ----------- ----------- ------------ ------------
Total liabilities 132,521 154,046 15,082 (135,692) 165,957
Detachable stock warrants,
subject to put option 9,300 9,300
Shareholders' equity (deficit) (2,423) 1,042 4,971 (5,761) (2,171)
------------ ----------- ----------- ------------ ------------
Total liabilities and
shareholders' equity $ 139,398 $ 155,088 $ 20,053 $ (141,453) $ 173,086
=========== =========== =========== =========== ===========
</TABLE>
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SUPPLEMENTAL CONSOLIDATING CONDENSED
INCOME STATEMENT (UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1998
---------------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 84,911 $ 11,808 $ 96,719
Cost of sales 55,762 9,616 65,378
----------- ----------- ----------- ----------- -----------
Gross profit 29,149 2,192 31,341
Selling, technical and
administrative expenses $ 40 10,198 1,342 11,580
Amortization of intangibles 4 1,765 - 1,769
----------- ----------- ----------- ----------- -----------
Total expenses 44 11,963 1,342 13,349
----------- ----------- ----------- ----------- -----------
Income (loss) from operations (44) 17,186 850 17,992
Interest expense 238 6,725 268 $ (106) 7,125
Income from equity investees 5,277 393 (5,670)
Other (income) expense, net (667) 73 14 106 (474)
------------ ----------- ----------- ----------- ------------
Income before extraordinary items
income taxes 5,662 10,781 568 (5,670) 11,341
Income taxes 164 4,488 175 4,827
Income before extraordinary items 5,498 6,293 393 (5,670) 6,514
Extraordinary items - prepayment
penalty on redemption of
Senior Notes and write-off of
deferred financing, net of
income tax 2,063 1,016 3,079
----------- ----------- ----------- ----------- -----------
Net Income $ 3,435 $ 5,277 $ 393 $ (5,670) $ 3,435
=========== =========== =========== ============ ===========
</TABLE>
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SUPPLEMENTAL CONSOLIDATING CONDENSED
INCOME STATEMENT (UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1997
---------------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 66,503 $ 10,478 $ 76,981
Cost of sales 45,637 8,408 54,045
----------- ----------- ----------- ----------- -----------
Gross profit 20,866 2,070 22,936
Selling, technical and
administrative expenses 8,036 1,411 9,447
Amortization of intangibles $ 5 1,621 - 1,626
----------- ----------- ----------- ----------- -----------
Total expenses 5 9,657 1,411 11,073
----------- ----------- ----------- ----------- -----------
Income (loss) from operations (5) 11,209 659 11,863
Interest expense 326 6,993 205 7,524
Income from equity investees 2,704 343 $ (3,047)
Other (income) expense, net (466) (28) 59 (435)
----------- ------------ ----------- ----------- ------------
Income before income taxes 2,839 4,587 395 (3,047) 4,774
Income taxes 54 1,883 52 1,989
----------- ----------- ----------- ----------- -----------
Net Income $ 2,785 $ 2,704 $ 343 $ (3,047) $ 2,785
=========== =========== =========== =========== ===========
</TABLE>
15
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SUPPLEMENTAL CONSOLIDATING CONDENSED
INCOME STATEMENT (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, 1998
---------------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 40,668 $ 6,073 $ 46,741
Cost of sales 26,678 4,913 31,591
----------- ----------- ----------- ----------- -----------
Gross profit 13,990 1,160 15,150
Selling, technical and
administrative expenses $ 40 5,141 696 5,877
Amortization of intangibles 2 868 870
----------- ----------- ----------- ----------- -----------
Total expenses 42 6,009 696 6,747
Income (loss) from operations (42) 7,981 464 8,403
Interest expense 76 3,011 146 $ (42) 3,191
Income from equity investees 1,991 180 (2,171)
Other (income) expense, net (465) 57 (2) 42 (368)
------------ ----------- ------------ ----------- ------------
Income before extraordinary
items and income taxes 2,338 5,093 320 (2,171) 5,580
Income taxes 153 2,086 140 2,379
Income before extraordinary items 2,185 3,007 180 (2,171) 3,201
Extraordinary items - prepayment
penalty on redemption of
Senior Notes and write-off of
deferred financing, net of
income tax 2,063 1,016 3,079
----------- ----------- ----------- ----------- -----------
Net income $ 122 $ 1,991 $ 180 $ (2,171) $ 122
=========== =========== =========== ============ ===========
</TABLE>
16
<PAGE> 17
SUPPLEMENTAL CONSOLIDATING CONDENSED
INCOME STATEMENT (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, 1997
---------------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net sales $ 34,631 $ 5,466 $ 40,097
Cost of sales 23,385 4,292 27,677
----------- ----------- ----------- ----------- -----------
Gross profit 11,246 1,174 12,420
Selling, technical and
administrative expenses 4,269 624 4,893
Amortization of intangibles $ 3 794 797
----------- ----------- ----------- ----------- -----------
Total expenses 3 5,063 624 5,690
Income (loss) from operations (3) 6,183 550 6,730
Interest expense 164 3,296 109 3,569
Income from equity investees 1,872 234 $ (2,106)
Other (income) expense, net (192) 110 173 91
------------ ----------- ----------- ----------- -----------
Income before income taxes 1,897 3,011 268 (2,106) 3,070
Income taxes 10 1,139 34 1,183
----------- ----------- ----------- ----------- -----------
Net income $ 1,887 $ 1,872 $ 234 $ (2,106) $ 1,887
=========== =========== =========== =========== ===========
</TABLE>
17
<PAGE> 18
SUPPLEMENTAL CONSOLIDATING CONDENSED
STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1998
---------------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net cash provided by
operating activities $ 731 $ 8,938 $ 2,334 $ 12,003
Cash flows from investing activities
Business acquisitions (9,000) (9,000)
Purchase of property, plant and
equipment (6,815) (1,168) (7,983)
Payments received on shareholder
loans 665 665
----------- ----------- ----------- ----------- -----------
Net cash used in investing activities (8,335) (6,815) (1,168) (16,318)
Cash flows from financing activities:
Payments on short-term debt (697) (697)
Proceeds from borrowings on
long-term debt 35,000 35,000
Net Proceeds from issuance
of common stock 53,168 53,168
Payments on long-term debt (65,000) (1,662) (302) (66,964)
Deferred financing costs (850) (850)
Payment of preferred stock dividend (165) (16) (181)
Payments on early retirement of debt (3,588) (3,588)
----------- ----------- ----------- ----------- -----------
Net cash provided by (used in)
financing activities 19,415 (2,528) (999) 15,888
----------- ----------- ----------- ----------- -----------
Net increase (decrease) in cash
and cash equivalents 11,811 (405) 167 11,573
Cash and cash equivalents
at beginning of period 3,103 469 816 4,388
----------- ----------- ----------- ----------- -----------
Cash and cash equivalents
at end of period $ 14,914 $ 64 $ 983 $ 15,961
=========== =========== =========== =========== ===========
</TABLE>
18
<PAGE> 19
SUPPLEMENTAL CONSOLIDATING CONDENSED
STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1997
---------------------------------------------------------------------------------------------
COMBINED COMBINED
GUARANTOR NON-GUARANTOR
PARENT SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Net cash provided by
operating activities $ 265 $ 1,195 $ 939 $ 2,399
Cash flows from investing activities:
Business acquisitions (10,639) (10,639)
Purchase of property, plant and
equipment (3,208) (585) (3,793)
Payments received on shareholder
loans 63 63
----------- ----------- ----------- ----------- -----------
Net cash used in investing activities (10,576) (3,208) (585) (14,369)
Cash flows from financing activities:
Proceeds (payments) on
long-term debt (1,283) 1,892 (812) (203)
Deferred financing costs (7) 119 112
Payment of preferred stock dividend (160) (160)
Other 33 33
----------- ----------- ----------- ----------- -----------
Net cash (used in) provided by
financing activities (1,450) 2,044 (812) (218)
----------- ----------- ----------- ----------- -----------
Net (decrease) increase in cash
and cash equivalents (11,761) 31 (458) (12,188)
Cash and cash equivalents
at beginning of period 25,187 5 582 25,774
----------- ----------- ----------- ----------- -----------
Cash and cash equivalents
at end of period $ 13,426 $ 36 $ 124 $ 13,586
=========== =========== =========== =========== ===========
</TABLE>
19
<PAGE> 20
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATION
The following discussion and analysis should be read in conjunction with the
Company's consolidated financial statements and notes thereto appearing
elsewhere in this report.
GENERAL
Hawk designs, engineers, manufactures and markets specialized components,
principally made from powder metals, used in a wide variety of aerospace,
industrial and commercial applications. The Company is a leading worldwide
supplier of friction products for brakes, clutches and transmissions used in
aerospace, industrial and specialty applications. Friction products represented
62.1% of Company sales in the first six months of 1998. Hawk is also a leading
supplier of powder metal components for industrial applications, including pump,
motor and transmission elements, gears, pistons and anti-lock brake sensor
rings. In addition, the Company designs and manufactures die-cast aluminum
rotors for small electric motors used in appliances, business machines and
exhaust fans. The Company focuses on manufacturing products requiring
sophisticated engineering and production techniques for applications in markets
where it has achieved a significant market share.
Since its formation in 1989, Hawk has pursued a strategic growth plan by making
complementary acquisitions and broadening its customer base. All these
acquisitions were accounted for under the purchase method of accounting, with
the purchase price allocated to the estimated fair market value of the assets
acquired and liabilities assumed. In the acquisitions, any excess of the
purchase price paid over the estimated fair value of the net assets acquired was
allocated to goodwill, which resulted in approximately $49.0 million of goodwill
reflected on the June 30, 1998 balance sheet. The annual amortization of
goodwill will result in non-cash charges to future operations of approximately
$2.1 million per year (of which the majority of such amortization is deductible
for tax purposes) based on amortization periods ranging from 15 to 40 years.
Year 2000 Compliance
- --------------------
The Company is addressing the Year 2000-compliance issue with a corporate-wide
initiative led by the Company's Manager of Information Technology and involving
coordinators for each Company location. The initiative includes the
identification of affected software, the development of a plan for correcting
that software in the most effective manner and the implementation and monitoring
of the implemented plan. In most instances, the Company will replace or upgrade
older software with new programs or systems, which will handle the year 2000,
and beyond. Although the timing of these replacements is influenced by Year 2000
compliance, in most instances they will involve capital expenditures that would
have occurred in the normal course of business in any event. The Company expects
that most of the modifications and replacements will be in place before
mid-1999.
Given the information available at this time, the Company anticipates that the
amount the Company will spend to modify or replace software in order to
remediate the Year 2000 issue will not be material.
20
<PAGE> 21
RECENT EVENTS
On June 8, 1998 the Company purchased all of the outstanding stock of Clearfield
Powdered Metals, Inc. ("Clearfield"), a privately-held Pennsylvania corporation.
Clearfield, located in Clearfield, Pennsylvania, is a powder metal component
manufacturer primarily serving the lawn and garden, home appliance, power hand
tool and truck markets. Clearfield has annual revenues of approximately $12.0
million. Clearfield was founded in 1984 by Dennis L. Merrey. Mr. Merrey will
serve as president of Clearfield. Clearfield is a guarantor of the Senior Notes,
Term Loan and Revolving Credit Facility.
SECOND QUARTER 1998 COMPARED TO SECOND QUARTER 1997
Net Sales. Net sales increased $6.6 million, or 16.6%, to $46.7 million in the
second quarter of 1998 from $40.1 million in the comparable quarter of 1997. The
sales increase was attributable to the acquisition of Sinterloy and Clearfield
in August 1997 and June 8, 1998, respectively, and strong customer demand in the
Company's friction and powder metal product lines. Sales of friction products,
led by its aerospace and truck markets, increased $0.9 million, or 3.2%, to
$28.9 million in the second quarter of 1998 from $28.0 million in the comparable
quarter of 1997. Sales of the Company's powder metal lines increased $6.1
million, or 87.6%, to $13.1 million in the second quarter of 1998 from $7.0
million in the comparable quarter of 1997. Sales in the Company's powder metal
lines, exclusive of Sinterloy and Clearfield, increased $1.3 million, or 19.3%,
to $8.3 million in the second quarter of 1998 from $7.0 million in the
comparable quarter of 1997. The increase was attributable to the strong customer
demand in the truck, motor and transmission components, and lawn and garden as
well as increased demand in the fluid power markets served by the Company.
Gross Profit. Gross profit increased $2.7 million, or 22.0%, to $15.1 million in
the second quarter of 1998 from $12.4 million in the comparable quarter of 1997.
The gross profit margin increased to 32.4% in the second quarter of 1998 from
31.0% in the comparable period of 1997. The increase is primarily attributable
to the inclusion of Sinterloy in the recent quarter, product mix and
manufacturing efficiencies resulting from the Company's current capital
expenditure program.
Selling Technical and Administrative("ST&A") Expenses. ST&A expenses increased
$1.0 million or 20.1% to $5.9 million in the second quarter of 1998 from $4.9
million in the comparable period of 1997. As a percentage of sales, ST&A
expenses increased to 12.6% of sales in the second quarter of 1998 from 12.2% in
the comparable quarter of 1997. This increase was due primarily to increased
spending in the Company's research & development efforts, and the hiring of
additional personnel required to support the Company's growth.
Income from Operations. Income from operations increased by $1.7 million or
24.9% to $8.4 million in the second quarter of 1998, from $6.7 million in the
comparable quarter of 1997. Income from operations as a percent of net sales
increased to 18.0% in the second quarter of 1998 from 16.8% in the comparable
quarter of 1997, reflecting increased sales activity, product mix, manufacturing
efficiencies and gross margin improvement.
Interest Expense. Interest expense decreased $0.4 million or 10.6% to $3.2
million in the second quarter of 1998 from $3.6 million in the comparable
quarter of 1997. The decrease is attributable to lower debt levels, a result of
the repayment of debt from the proceeds of the Company's IPO.
21
<PAGE> 22
Income Taxes. The provision for income taxes increased to $2.4 million in the
second quarter of 1998 from $1.2 million in the comparable quarter of 1997,
reflecting the increase in pre-tax income as well as an increase in the
Company's effective tax rate, due to the acquisition of Hutchinson and
Clearfield.
Income before Extraordinary Items. As a result of the items discussed above,
income before extraordinary items increased $1.3 million, or 69.6%, to $3.2
million for the second quarter of 1998 from $1.9 million in the comparable
period of 1997.
Extraordinary Items. In May 1998, the Company incurred an extraordinary loss of
$3.1 million (net of tax) as a result of the repurchase of $35.0 million of the
$100.0 million of 10.25% Senior Notes due December 1, 2003 and the retirement of
all of its outstanding Senior Subordinated Notes.
Net Income. As a result of the factors discussed above, net income decreased
$1.8 million to $0.1 million in the second quarter of 1998 from $1.9 million in
the comparable period of 1997.
FIRST SIX MONTHS OF 1998 COMPARED TO FIRST SIX MONTHS OF 1997
Net Sales. Net Sales increased by $19.7 million, or 25.6%, to $96.7 million
during the first six months of 1998 from $77.0 million during the first six
months of 1997. The net sales increase in the first six months of 1998 was
attributable to the acquisition of Sinterloy, and to a lesser extent,
Clearfield, and strong customer demand in all product lines served by the
Company. Sales of friction products increased to $60.1 million for the six
months ended June 1998 from $53.9 million in the comparable period of 1997, or
11.6%. The Company experienced strong demand, led by aerospace and truck, in all
of its friction markets for the first six months of 1998. Sales of the Company's
powder metal lines increased 105.4% to $26.7 million for the first six months of
1998 from $13.0 million in the comparable period of 1997. Exclusive of Sinterloy
and Clearfield, sales of powder metal products increased by 27.3%. This increase
was led by strong customer demand in the truck, motor and transmission
components, lawn and garden and the fluid power markets served by the Company.
Gross Profit. Gross profit increased $8.4 million to $31.3 million during the
first six months of 1998, a 36.7% increase over gross profit of $22.9 million
during the first six months of 1997. The gross profit margin increased to 32.4%
during the first six months of 1998 from 29.8% during the comparable period of
1997. The increase is due to the acquisition of Sinterloy, product mix, and
manufacturing efficiencies resulting from the Company's current capital
expenditure program.
Selling, Technical and Administrative ("ST&A") Expenses. ST&A expenses increased
$2.1 million, or 22.6%, to $11.6 million during the first six months of 1998.
The acquisition of Sinterloy and Clearfield represented 55.3% of the total
increase in ST&A during the first six months of 1998. ST&A decreased to 12.0% of
sales during the first six months of 1998 from 12.3% during the comparable
period of 1997.
Income from Operations. Income from operations increased by $6.1 million, or
51.7%, to $18.0 million during the first six months of 1998 from $11.9 million
in the comparable quarter of 1997. Income from operations as a percent of net
sales increased to 18.6% in the first six months of 1998 from 15.4% in the
comparable six month period of 1997, reflecting increased sales activity,
product mix, manufacturing efficiencies and margin improvement.
22
<PAGE> 23
Interest Expense. Interest expense decreased $0.4 million, or 5.3%, to $7.1
million in the first six months of 1998 from $7.5 million in the comparable six
month period of 1997. The decrease is attributable to lower debt levels, a
result of the repayment of debt from the proceeds of the Company's IPO during
the second quarter of 1998.
Income Taxes. The provision for income taxes increased to $4.8 million in the
first six months of 1998 from $2.0 million in the comparable period of 1997,
reflecting the increase in pre-tax income. The Company's effective tax rate
during the first six months of 1998 was 42.6% compared to 41.7% in the
comparable six month period of 1997. The increase in rates is due in part to the
acquisition of Hutchinson and Clearfield, as well as the higher income levels
achieved by the Company.
Income before Extraordinary Items. As a result of the items discussed above,
income before extraordinary items increased $3.7 million, or 133.9%, to $6.5
million for the six months ended June 1998 from $2.8 million in the comparable
period of 1997.
Net Income. Net income increased $0.6 million to $3.4 million, or 23.3%, in the
first six months of 1998 from $2.8 million in the comparable period of 1997.
LIQUIDITY AND CAPITAL RESOURCES
Net cash from operating activities was $12.0 million for the six month period
ended June 30, 1998 as compared to net cash from operating activities of $2.4
million in the comparable period of 1997. The increase in net income and
non-cash charges in addition to an improved working capital position at June 30,
1998 accounted for the increased operating cash flow.
Net cash used in investing activities was $16.3 million and $14.4 million for
the six month periods ending June 30, 1998 and 1997, respectively. The cash used
in investing activities during the six month period ended June 1998, consisted
of the acquisition of Clearfield and $8.0 million for the purchases of property,
plant and equipment. In the comparable period of 1997, cash used in investing
activities consisted of the acquisition of Hutchinson in January 1997 and $3.8
million for the purchases of property, plant and equipment.
Net cash provided by financing activities was $15.9 million for the six month
period of 1998 received primarily from the proceeds of the Company's IPO and
proceeds from a new $35.0 million term loan. These proceeds were used to retire
$65.0 million of debt outstanding. In the comparable six month period of
1997, net cash used in financing activities of $0.2 was primarily used for the
payment of debt and dividends.
The primary uses of capital by the Company are (1) to pay interest on, and to
repay principal of, indebtedness, (2) for capital expenditures for maintenance,
replacement and acquisitions of equipment, expansion of capacity, productivity
improvements and product development, and (3) making additional strategic
acquisitions of complementary businesses.
As of June 30, 1998, the Company was in compliance with the terms of its
indebtedness.
The Company believes that cash flow from operating activities, and additional
funds available under the Company's revolving credit facility, will be
sufficient to meet its currently anticipated operating and capital expenditure
requirements and service its indebtedness for the next 12 months.
23
<PAGE> 24
FORWARD LOOKING STATEMENTS
Statements that are not historical facts, including statements about the
Company's confidence in its prospects and strategies and its expectations about
expansion into new markets and growth in existing markets, are forward-looking
statements that involve risks and uncertainties. These risks and uncertainties
include, but are not limited to (1) the ability of the Company to continue to
meet the terms of the Company's credit documents which contain a number of
significant financial covenants and other restrictions; (2) the Company's
reliance on significant customers; (3) changes in market conditions in the
end-markets served by the Company; (4) supplies and prices of raw materials used
by the Company; (5) the effect of product mix on margins; (6) whether the
Company's aerospace friction products will be able to continue to meet stringent
Federal Aviation Administration criteria and testing requirements; (7) whether
the Company will be able to successfully integrate Clearfield into its
operations; and (8) the Company's continued expansion into international
markets, with all the risks inherent in doing business internationally,
including unexpected changes in regulatory requirements, export restrictions,
currency controls, tariffs and other trade barriers, potential instability,
fluctuation in currency exchange rates and potential adverse tax consequences.
Any investor or potential investor in the Company must consider these risks and
others that are detailed in the Company's filings with the Securities and
Exchange Commission.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Not Applicable
24
<PAGE> 25
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is involved in lawsuits arising in the ordinary course of business.
In the Company's opinion, the outcome of these matters is not anticipated to
have a material adverse effect on the Company's financial condition, liquidity
or results of operations.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Use of Proceeds.
(1) On May 11, 1998 the Securities and Exchange Commission declared
effective the Company's Registration Statement on Form S-1 (File No.
333-40535).
(2) The Offering Date was May 12, 1998.
(3) Not applicable.
(4) (i) The offering has terminated and all of the securities registered
have been sold.
(ii) Managing Underwriters: Schroder & Co. Inc., Lehman Brothers Inc.
and McDonald & Company Securities, Inc.
(iii) Title of Class of Securities Registered: Class A Common Stock,
par value $.01 per share.
(iv)
<TABLE>
<CAPTION>
SELLING
ISSUER SHAREHOLDERS
------ ------------
<S> <C> <C> <C>
Amount registered ................. 3,500,000 2,405,250
Aggregate offering price of the
amount registered ............. $59,500,000 $40,889,250
Amount sold ....................... 3,500,000 2,405,250
Aggregate offering price of the
amount sold to date ........... $59,500,000 $40,889,250
</TABLE>
25
<PAGE> 26
(v) Estimate of Expenses:
<TABLE>
<S> <C>
Underwriters' discounts and commissions............................$ 7,027,248
Less: Underwriters' discounts and commissions paid
by selling shareholders........................................ (2,862,248)
All other expenses................................................. 261,000
---------------
Total expenses paid by the issuer $ 4,426,000
===============
</TABLE>
All of the total expenses paid by the issuer were
comprised of direct or indirect payments to others.
(vi) Net Offering Proceeds: $55,074,000 to issuer.
(vii) Use of Net Offering Proceeds: The Net Offering
Proceeds together with the $35.0 million term loan
were applied as follows: $65.0 million of the net
proceeds were used to repay indebtedness;
approximately $6.0 million was used to pay accrued
interest and prepayment premiums on the above
indebtedness; approximately $1.8 million for the
partial redemption of its Series A, Series B and
Series C Preferred Stock; and approximately $17.3
million was used for working capital and general
corporate purposes.
Certain of the shares of Series A, Series B and
Series C Preferred Stock redeemed were owned by
directors and executive officers of the Company as
follows: (1) the Series A Preferred Stock owned by
Clanco Partners I, of which William J. O'Neill, Jr.
is the managing partner, Clanco Family Partners,
L.P. ("Clanco FLP"), of which Mr. O'Neill is a
director of its general partner, and Dorothy K.
O'Neill Revocable Trust, of which Mr. O'Neill is a
co-trustee; (2) the Series B Preferred Stock owned
by Clanco FLP, Jeffrey H. Berlin, Douglas D. Wilson
and Thomas A. Gilbride; and (3) the Series C
Preferred Stock owned by Clanco Partners I, Mr.
Wilson and Dan T. Moore, III, and certain fractional
shares of Series C Preferred Stock owned by Norman
C. Harbert, Ronald E. Weinberg, Byron S. Krantz and
their respective affiliates.
(viii) Material Change in the Use of Proceeds: Not
Applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
---------
10.1 Credit Agreement dated as of May 1, 1998, among Hawk
Corporation and KeyBank National Association, as Swing Line
Lender, Administrative Agent and as Syndication Agent
10.2 Subsidiary Guaranty dated as of May 1, 1998, among the
Subsidiaries of Hawk Corporation, as guarantors, and KeyBank
National Association, as Administrative Agent
26
<PAGE> 27
27 Financial Data Schedule
(b) Reports on Form 8-K:
--------------------
The Company filed a report on Form 8-K on June 1, 1998, relating
to the Company's acquisition of Clearfield Powder Metals, Inc.
The Company filed a report on Form 8-K on June 10, 1998, relating
to the Company's acquisition of Clearfield Powder Metals, Inc.
27
<PAGE> 28
SIGNATURES
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.
Date: August 12, 1998 HAWK CORPORATION
By: /s/ Ronald E. Weinberg
---------------------------
Ronald E. Weinberg, Chairman of the Executive Committee
and Treasurer
By: /s/ Thomas A. Gilbride
---------------------------
Thomas A. Gilbride, Vice President- Finance
(Chief Accounting Officer)
28
<PAGE> 1
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
DATED AS OF
MAY 1, 1998
AMONG
HAWK CORPORATION
AS BORROWER
THE LENDING INSTITUTIONS NAMED THEREIN
AS LENDERS
KEYBANK NATIONAL ASSOCIATION
AS SWING LINE LENDER,
ADMINISTRATIVE AGENT AND AS SYNDICATION AGENT
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1. DEFINITIONS AND TERMS...........................................................................1
1.1. CERTAIN DEFINED TERMS...........................................................................1
1.2. COMPUTATION OF TIME PERIODS....................................................................18
1.3. ACCOUNTING TERMS...............................................................................18
1.4. TERMS GENERALLY................................................................................18
SECTION 2. AMOUNT AND TERMS OF LOANS......................................................................18
2.1. COMMITMENTS FOR LOANS..........................................................................18
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS...........................................19
2.3. BORROWING PROCEDURES...........................................................................19
2.4. DISBURSEMENT OF FUNDS..........................................................................20
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS..................................21
2.6. NOTES..........................................................................................22
2.7. CONVERSIONS OF TERM LOANS AND GENERAL REVOLVING LOANS..........................................23
2.8. INTEREST.......................................................................................23
2.9. INTEREST PERIODS...............................................................................25
2.10. INCREASED COSTS, ILLEGALITY, ETC...............................................................26
2.11. BREAKAGE COMPENSATION..........................................................................28
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS...............................................28
SECTION 3. LETTERS OF CREDIT..............................................................................29
3.1. LETTERS OF CREDIT..............................................................................29
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE.................................................30
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS...................................................30
3.4. LETTER OF CREDIT PARTICIPATIONS................................................................31
3.5. INCREASED COSTS................................................................................32
3.6. GUARANTY OF SUBSIDIARY LETTER OF CREDIT OBLIGATIONS............................................33
SECTION 4. FEES; COMMITMENTS..............................................................................34
4.1. FEES...........................................................................................34
4.2. VOLUNTARY TERMINATION/REDUCTION OF COMMITMENTS.................................................35
4.3. MANDATORY TERMINATION/ADJUSTMENTS OF COMMITMENTS, ETC..........................................36
4.4. EXTENSION OF GENERAL REVOLVING MATURITY DATE...................................................37
SECTION 5. PAYMENTS.......................................................................................37
5.1. VOLUNTARY PREPAYMENTS..........................................................................37
5.2. SCHEDULED REPAYMENTS OF TERM
LOANS..........................................................................................38
5.3. MANDATORY PREPAYMENTS..........................................................................38
5.4. METHOD AND PLACE OF PAYMENT....................................................................39
5.5. NET PAYMENTS...................................................................................39
SECTION 6. CONDITIONS PRECEDENT...........................................................................41
6.1. CONDITIONS PRECEDENT AT CLOSING DATE...........................................................41
6.2. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS......................................................42
SECTION 7. REPRESENTATIONS AND WARRANTIES.................................................................43
7.1. CORPORATE STATUS, ETC..........................................................................43
7.2. SUBSIDIARIES...................................................................................43
7.3. CORPORATE POWER AND AUTHORITY, ETC.............................................................43
7.4. NO VIOLATION...................................................................................43
</TABLE>
ii
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
PAGE
7.5. GOVERNMENTAL APPROVALS.........................................................................43
7.6. LITIGATION.....................................................................................44
7.7. USE OF PROCEEDS; MARGIN REGULATIONS............................................................44
7.8. FINANCIAL STATEMENTS, ETC......................................................................44
7.9. NO MATERIAL ADVERSE CHANGE.....................................................................45
7.10. TAX RETURNS AND PAYMENTS.......................................................................45
7.11. TITLE TO PROPERTIES, ETC.......................................................................45
7.12. LAWFUL OPERATIONS, ETC.........................................................................45
7.13. ENVIRONMENTAL MATTERS..........................................................................45
7.14. COMPLIANCE WITH ERISA..........................................................................46
7.15. INTELLECTUAL PROPERTY, ETC.....................................................................46
7.16. INVESTMENT COMPANY.............................................................................46
7.17. LABOR RELATIONS................................................................................46
7.18. EXISTING INDEBTEDNESS..........................................................................47
7.19. YEAR 2000 COMPUTER MATTERS.....................................................................47
7.20. TRUE AND COMPLETE DISCLOSURE...................................................................47
SECTION 8. AFFIRMATIVE COVENANTS..........................................................................47
8.1. REPORTING REQUIREMENTS.........................................................................47
8.2. BOOKS, RECORDS AND INSPECTIONS.................................................................50
8.3. INSURANCE......................................................................................50
8.4. PAYMENT OF TAXES AND CLAIMS....................................................................50
8.5. CORPORATE FRANCHISES...........................................................................50
8.6. GOOD REPAIR....................................................................................50
8.7. COMPLIANCE WITH STATUTES, ETC..................................................................51
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS.............................................................51
8.9. FISCAL YEARS, FISCAL QUARTERS..................................................................51
8.10. CERTAIN SUBSIDIARIES TO JOIN IN SUBSIDIARY GUARANTY............................................52
8.11. HEDGE AGREEMENTS, ETC..........................................................................52
8.12. MOST FAVORED COVENANT STATUS...................................................................52
8.13. SENIOR DEBT....................................................................................53
SECTION 9. NEGATIVE COVENANTS.............................................................................53
9.1. CHANGES IN BUSINESS............................................................................53
9.2. CONSOLIDATION, MERGER, ACQUISITIONS, ASSET SALES, ETC..........................................53
9.3. LIENS..........................................................................................54
9.4. INDEBTEDNESS...................................................................................55
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS..........................................56
9.6. DIVIDENDS, ETC.................................................................................57
9.7. MINIMUM CONSOLIDATED NET WORTH................................................................57
9.8. CONSOLIDATED TOTAL DEBT/CONSOLIDATED EBITDA RATIO..............................................58
9.9. INTEREST COVERAGE RATIO........................................................................58
9.10. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS...................................................58
9.11. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC................................................58
9.12. TRANSACTIONS WITH AFFILIATES...................................................................58
9.13. PLAN TERMINATIONS, MINIMUM FUNDING, ETC........................................................59
</TABLE>
iii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
PAGE
SECTION 10. EVENTS OF DEFAULT..............................................................................59
10.1. EVENTS OF DEFAULT..............................................................................59
10.2. ACCELERATION, ETC..............................................................................60
10.3. APPLICATION OF LIQUIDATION PROCEEDS............................................................61
SECTION 11. THE ADMINISTRATIVE AGENT.......................................................................61
11.1. APPOINTMENT....................................................................................61
11.2. DELEGATION OF DUTIES...........................................................................62
11.3. EXCULPATORY PROVISIONS.........................................................................62
11.4. RELIANCE BY ADMINISTRATIVE AGENT...............................................................62
11.5. NOTICE OF DEFAULT..............................................................................62
11.6. NON-RELIANCE...................................................................................63
11.7. INDEMNIFICATION................................................................................63
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY................................................63
11.9. SUCCESSOR ADMINISTRATIVE AGENT.................................................................63
11.10. OTHER AGENTS...................................................................................64
SECTION 12. MISCELLANEOUS..................................................................................64
12.1. PAYMENT OF EXPENSES ETC........................................................................64
12.2. RIGHT OF SETOFF................................................................................65
12.3. NOTICES........................................................................................65
12.4. BENEFIT OF AGREEMENT...........................................................................66
12.5. NO WAIVER: REMEDIES CUMULATIVE.................................................................67
12.6. PAYMENTS PRO RATA..............................................................................67
12.7. CALCULATIONS: COMPUTATIONS.....................................................................68
12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.........................68
12.9. COUNTERPARTS...................................................................................68
12.10. EFFECTIVENESS..................................................................................68
12.11. HEADINGS DESCRIPTIVE...........................................................................69
12.12. AMENDMENT OR WAIVER............................................................................69
12.13. SURVIVAL OF INDEMNITIES........................................................................69
12.14. DOMICILE OF LOANS..............................................................................69
12.15. CONFIDENTIALITY................................................................................70
12.16. LENDER REGISTER................................................................................70
12.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS.......................................70
12.18. GENERAL LIMITATION OF LIABILITY................................................................71
12.19. NO DUTY........................................................................................71
12.20. LENDERS AND AGENT NOT FIDUCIARY TO BORROWER, ETC...............................................71
12.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................................................71
</TABLE>
iv
<PAGE> 5
- ------------
ANNEX I - INFORMATION AS TO LENDERS
ANNEX II - INFORMATION AS TO SUBSIDIARIES
ANNEX III - DESCRIPTION OF EXISTING INDEBTEDNESS
ANNEX IV - DESCRIPTION OF EXISTING LIENS
ANNEX V - DESCRIPTION OF EXISTING ADVANCES, LOANS, INVESTMENTS AND
GUARANTEES
ANNEX VI - DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER THE
CREDIT AGREEMENT
EXHIBIT A-1 - FORM OF TERM NOTE
EXHIBIT A-2 - FORM OF GENERAL REVOLVING NOTE
EXHIBIT A-3 - FORM OF SWING LINE REVOLVING NOTE
EXHIBIT B-1 - FORM OF NOTICE OF BORROWING
EXHIBIT B-2 - FORM OF NOTICE OF CONVERSION
EXHIBIT B-3 - FORM OF LETTER OF CREDIT REQUEST
EXHIBIT C - FORM OF SUBSIDIARY GUARANTY
EXHIBIT D - FORM OF OPINION OF SPECIAL COUNSEL TO THE BORROWER
EXHIBIT E - FORM OF ASSIGNMENT AGREEMENT
EXHIBIT F - FORM OF SECTION 5.5(b)(ii) CERTIFICATE
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<PAGE> 6
CREDIT AGREEMENT, dated as of May 1, 1998, among the following:
(i) HAWK CORPORATION, a Delaware corporation (herein, together
with its successors and assigns, the "BORROWER");
(ii) the lending institutions listed in Annex I hereto (each a
"LENDER" and collectively, the "LENDERS"); and
(iii) KEYBANK NATIONAL ASSOCIATION, a national banking
association, as the Lender under the Swing Line Revolving Facility
referred to herein (the "SWING LINE LENDER"), and as administrative
agent (the "ADMINISTRATIVE AGENT"), and as syndication agent (the
"SYNDICATION AGENT"):
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms used herein
and defined in section 1 are used herein as so defined.
(2) The Borrower has applied to the Lenders for credit facilities in
order to refinance certain Indebtedness of the Borrower, to finance Acquisitions
and in order to provide working capital and funds for other lawful purposes.
(3) Subject to and upon the terms and conditions set forth herein, the
Lenders are willing to make available to the Borrower the credit facilities
provided for herein.
NOW, THEREFORE, it is agreed:
SECTION 1. DEFINITIONS AND TERMS.
1.1. CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires:
"ACQUISITION" shall mean and include (i) any acquisition on a going
concern basis (whether by purchase, lease or otherwise) of any facility and/or
business operated by any person who is not a Subsidiary of the Borrower, and
(ii) acquisitions of a majority of the outstanding equity or other similar
interests in any such person (whether by merger, stock purchase or otherwise).
"ADMINISTRATIVE AGENT" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to section 11.9.
"AFFILIATE" shall mean, with respect to any person, any other person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such person. A person shall be deemed to control a second
person if such first person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors or managers of such second person or (ii) to direct or cause the
direction of the management and policies of such second person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, (x) a director, officer or employee of a person shall not, solely
by reason of such status, be considered an Affiliate of such person; and (y)
neither the Administrative Agent nor any Lender shall in any event be considered
an Affiliate of the Borrower or any other Credit Party or any of their
respective Subsidiaries.
"AGREEMENT" shall mean this Credit Agreement, as the same may be from
time to time further modified, amended and/or supplemented.
"APPLICABLE EURODOLLAR MARGIN" shall have the meaning provided in
section 2.8(h).
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"APPLICABLE FACILITY FEE RATE" shall have the meaning provided in
section 4.1(a).
"APPLICABLE LENDING OFFICE" shall mean, (i) with respect to each
Lender, (A) such Lender's Domestic Lending Office in the case of Borrowings
consisting of Prime Rate Loans, and (B) such Lender's Eurodollar Lending Office
in the case of Borrowings consisting of Eurodollar Loans, and (ii) with respect
to the Swing Line Lender, its Domestic Lending Office.
"ASSET SALE" shall mean the sale, transfer or other disposition
(including by means of Sale and Lease-Back Transactions, and by means of
mergers, consolidations, and liquidations of a corporation, partnership or
limited liability company of the interests therein of the Borrower or any
Subsidiary) by the Borrower or any Subsidiary to any person other than the
Borrower or any Subsidiary of any of their respective assets, PROVIDED that the
term Asset Sale specifically excludes any sales, transfers or other dispositions
of inventory, or obsolete or excess furniture, fixtures, equipment or other
property, tangible or intangible, in each case in the ordinary course of
business.
"ASSIGNMENT AGREEMENT" shall mean an Assignment Agreement substantially
in the form of Exhibit E hereto.
"AUTHORIZED OFFICER" shall mean any officer or employee of the Borrower
designated as such in writing to the Administrative Agent by the Borrower.
"BANKRUPTCY CODE" shall have the meaning provided in section 10.1(h).
"BORROWER" shall have the meaning provided in the first paragraph of
this Agreement.
"BORROWING" shall mean and include:
(i) the incurrence of Term Loans or General Revolving Loans,
as the case may be, consisting of one Type of Loan, by the Borrower
from all of the Lenders having Commitments in respect thereof on a PRO
RATA basis on a given date (or in the case of Term Loans or General
Revolving Loans, resulting from conversions on a given date), having in
the case of Eurodollar Loans the same Interest Period; and
(ii) the incurrence of a Swing Line Revolving Loan, which
shall consist of a single Type of Loan, by the Borrower from the Swing
Line Lenders on a given date.
"BUSINESS DAY" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which shall be
in the city in which the Payment Office is located a legal holiday or a day on
which banking institutions are authorized by law or other governmental actions
to close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day which
is a Business Day described in clause (i) and which is also a day for trading by
and between banks in U.S. dollar deposits in the interbank Eurodollar market.
"CAPITAL LEASE" as applied to any person shall mean any lease of any
property (whether real, personal or mixed) by that person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that person.
"CAPITALIZED LEASE OBLIGATIONS" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries in each case taken at
the amount thereof accounted for as liabilities identified as "capital lease
obligations" (or any similar words) on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP.
"CASH EQUIVALENTS" shall mean any of the following:
(i) securities issued or directly and fully guaranteed or
insured by the United States of America or any agency or
instrumentality thereof (PROVIDED that the full faith and credit of the
United States of America is pledged in support thereof) having
maturities of not more than one year from the date of acquisition;
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<PAGE> 8
(ii) U.S. dollar denominated time deposits, certificates of
deposit and bankers' acceptances of (x) any Lender or (y) any bank
whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank, an "APPROVED Bank"), in each case
with maturities of not more than 180 days from the date of acquisition;
(iii) commercial paper issued by any Lender or Approved Bank
or by the parent company of any Lender or Approved Bank and commercial
paper issued by, or guaranteed by, any industrial or financial company
with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each
thereof, from S&P or Moody's, as the case may be, and in each case
maturing within 270 days after the date of acquisition;
(iv) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in
clauses (i) through (iii) above;
(v) investments in money market funds access to which is
provided as part of "sweep" accounts maintained with a Lender or an
Approved Bank;
(vi) investments in industrial development revenue bonds which
(i) "re-set" interest rates not less frequently than quarterly, (ii)
are entitled to the benefit of a remarketing arrangement with an
established broker dealer, and (iii) are supported by a direct pay
letter of credit covering principal and accrued interest which is
issued by an Approved Bank; and
(vii) investments in pooled funds or investment accounts
consisting of investments of the nature described in the foregoing
clause (vi).
"CASH PROCEEDS" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, but only as and
when so received) received by the Borrower and/or any Subsidiary from such Asset
Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. Section 9601 ET SEQ.
"CHANGE OF CONTROL" shall mean and include any of the following:
(i) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the
Borrower's Board of Directors (together with any new directors (x)
whose election by the Borrower's Board of Directors was, or (y) whose
nomination for election by the Borrower's shareholders was (prior to
the date of the proxy or consent solicitation relating to such
nomination), approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so
approved), cease for any reason to constitute a majority of the
directors then in office;
(ii) any person or group (as such term is defined in section
13(d)(3) of the 1934 Act), other than the Borrower, any trustee or
other fiduciary holding securities under an employee benefit plan of
the Borrower and the Current Holder Group, shall acquire, directly or
indirectly, beneficial ownership (within the meaning of Rule 13d-3 and
13d-5 of the 1934 Act) of more than 25%, on a fully diluted basis, of
the economic or voting interest in the Borrower's capital stock;
(iii) the shareholders of the Borrower approve a merger or
consolidation of the Borrower with any other person, OTHER than a
merger or consolidation which would result in the voting securities of
the Borrower outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted or
exchanged for voting securities of the surviving or resulting entity)
more than 75% of the combined
3
<PAGE> 9
voting power of the voting securities of the Borrower or such surviving
or resulting entity outstanding after such merger or consolidation;
(iv) the shareholders of the Borrower approve a plan of
complete liquidation of the Borrower or an agreement or agreements for
the sale or disposition by the Borrower of all or substantially all of
the Borrower's assets; and/or
(v) any "Change of Control" or similar term as defined in any
agreement or instrument evidencing or governing Indebtedness of the
Borrower in an original aggregate principal amount of at least
$10,000,000.
As used in this definition, the term "CURRENT HOLDER GROUP" shall mean (i) those
persons who are officers and directors of the Borrower at the Effective Date,
(ii) the spouses, heirs, legatees, descendants and blood relatives to the third
degree of consanguinity of any such person, (iii) the executors and
administrators of the estate of any such person, and any court appointed
guardian of any such person, and (iv) any trust, family partnership or similar
investment entity for the benefit of any such person referred to in the
foregoing clauses (i) and (ii) or any other persons, so long as one or more
members of the Current Holder Group has the exclusive or a joint right to
control the voting and disposition of securities held by such trust, family
partnership or other investment entity.
"CLOSING DATE" shall mean the date, on or after the Effective Date,
upon which the conditions specified in section 6.1 are satisfied.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"COMMITMENT" shall mean with respect to each Lender its Term Loan
Commitment, if any, its General Revolving Commitment, if any, or its Swing Line
Revolving Commitment, if any, or some or all of the foregoing, as the case may
be.
"CONSOLIDATED AMORTIZATION EXPENSE" shall mean, for any period, all
amortization expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events amounts expended or capitalized under Capital Leases
but excluding any amount representing capitalized interest) by the Borrower and
its Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant or equipment reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries. Notwithstanding
the foregoing, amounts expended to complete, or capitalized in connection with
the completion of, Permitted Acquisitions, shall not constitute Consolidated
Capital Expenditures.
"CONSOLIDATED DEPRECIATION EXPENSE" shall mean, for any period, all
depreciation expenses of the Borrower and its Subsidiaries, all as determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net Income
for such period; PLUS (A) the sum of the amounts for such period included in
determining such Consolidated Net Income of (i) Consolidated Interest Expense,
(ii) Consolidated Income Tax Expense, (iii) amortization or write-off of
deferred financing costs and charges for prepayment penalties on prepayment of
Indebtedness (all of which amounts do not in the aggregate exceed in the 1998
fiscal year a maximum of $5,500,000 on a pre-tax basis), and (iv) extraordinary
and other non-recurring non-cash losses and charges; LESS (B) gains on sales of
assets and other extraordinary gains and other non-recurring non-cash gains; all
as determined for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP, EXCEPT that in computing Consolidated Net Income for
purposes of this definition, there shall be excluded therefrom (x) the income,
(or loss) of any entity (other than Subsidiaries of the Borrower) in which the
Borrower or any of its Subsidiaries has a joint interest, except to the extent
of the amount of dividends or other distributions actually paid to the Borrower
or any of its Subsidiaries during such period, and (y) the income of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary.
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<PAGE> 10
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated EBIT for
such period; PLUS the sum (without duplication) of the amounts for such period
included in determining such Consolidated EBIT of (i) Consolidated Depreciation
Expense, and (ii) Consolidated Amortization Expense, all as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
PROVIDED that, notwithstanding anything to the contrary contained herein, the
Borrower's Consolidated EBITDA for any Testing Period shall (x) include the
appropriate financial items for any person or business unit which has been
acquired by the Borrower for any portion of such Testing Period prior to the
date of acquisition, and (y) exclude the appropriate financial items for any
person or business unit which has been disposed of by the Borrower, for the
portion of such Testing Period prior to the date of disposition.
"CONSOLIDATED INCOME TAX EXPENSE" shall mean, for any period, all
provisions for taxes based on the net income of the Borrower or any of its
Subsidiaries (including, without limitation, any additions to such taxes, and
any penalties and interest with respect thereto), all as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, total
interest expense (including that which is capitalized and that which is
attributable to Capital Leases, in accordance with GAAP) of the Borrower and its
Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries including, without limitation,
net costs under Hedge Agreements, but excluding, however, any amortization of
deferred financing costs, all as determined in accordance with GAAP.
"CONSOLIDATED NET DEBT" shall mean at any time of determination thereof
(i) the principal amount (or Capitalized Lease Obligation, in the case of a
Capital Lease) of Consolidated Total Debt which would appear on a consolidated
balance sheet of the Borrower and its Subsidiaries at such time, REDUCED BY (ii)
the amount, if any, in excess of $5,000,000, of all unrestricted and
unencumbered cash and Cash Equivalents which would appear on a consolidated
balance sheet of the Borrower and its Subsidiaries at such time.
"CONSOLIDATED NET INCOME" shall mean for any period, the net income (or
loss) of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with GAAP.
"CONSOLIDATED NET WORTH" shall mean at any time for the determination
thereof all amounts which, in conformity with GAAP, would be included under the
caption "total stockholders' equity" (or any like caption) on a consolidated
balance sheet of the Borrower as at such date, PROVIDED that in no event shall
Consolidated Net Worth include any amounts in respect of Redeemable Stock.
"CONSOLIDATED TOTAL DEBT" shall mean at any time of determination
thereof the sum (without duplication) of the principal amount (or Capitalized
Lease Obligation, in the case of a Capital Lease) of all Indebtedness of the
Borrower and of each of its Subsidiaries, all as determined on a consolidated
basis.
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, the Subsidiary
Guaranty and any Letter of Credit Document.
"CREDIT EVENT" shall mean the making of any Loans and/or the issuance
of any Letter of Credit.
"CREDIT PARTY" shall mean the Borrower and each of its Subsidiaries
which is a party to any Credit Document.
"DEFAULT" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with, respect to which a
Lender Default is in effect.
"DOCUMENTARY LETTER OF CREDIT" shall have the meaning provided in
section 3.1(a).
"DOLLARS", "U.S. DOLLARS", "DOLLARS" and the sign "$" each means lawful
money of the United States.
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<PAGE> 11
"DOMESTIC LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Domestic Lending Office in Annex I or in
the Assignment Agreement pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EFFECTIVE DATE" shall have the meaning provided in section 12.10.
"ELIGIBLE TRANSFEREE" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined in SEC
Regulation D), in each case which
(i) is not disapproved in writing by the Borrower in a notice
given to a requesting Lender and the Administrative Agent, specifying
the reasons for such disapproval, within five Business Days following
the giving of notice to the Borrower of the identity of any proposed
transferee (any such disapproval by the Borrower must be reasonable),
PROVIDED that the Borrower shall not be entitled to exercise the
foregoing right of disapproval if and so long as any Event of Default
shall have occurred and be continuing, and PROVIDED, FURTHER, that for
purposes of transfers by the initial Lender hereunder prior to the
Syndication Date, those financial institutions which the Syndication
Agent has identified to the Borrower prior to the Effective Date as
potential Lenders hereunder and which the Borrower indicated at such
time were acceptable to it, shall be considered Eligible Transferees;
and
(ii) is not a direct competitor of the Borrower or engaged in
the same or similar principal lines of business as the Borrower and its
Subsidiaries considered as a whole, or is not an Affiliate of any such
competitor of the Borrower and its Subsidiaries.
"ENVIRONMENTAL CLAIMS" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any Environmental Law or any permit issued under any such law
(hereafter "CLAIMS"), including, without limitation, (i) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (ii) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the storage, treatment or Release (as defined
in CERCLA) of any Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment.
"ENVIRONMENTAL LAW" shall mean any applicable Federal, state, foreign
or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy and rule of common
law now or hereafter in effect and in each case as amended, and any binding and
enforceable judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment issued to or
rendered against the Borrower or any of its Subsidiaries relating to the
environment, employee health and safety or Hazardous Materials, including,
without limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33
U.S.C. Section 2601 ET SEQ.; the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ.;
the Safe Drinking Water Act, 42 U.S.C. Section 3803 ET SEQ.; the Oil Pollution
Act of 1990, 33 U.S.C. Section 2701 ET SEQ.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 ET SEQ., the
Hazardous Material Transportation Act, 49 U.S.C. Section 1801 ET SEQ. and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 ET SEQ. (to the extent
it regulates occupational exposure to Hazardous Materials); and any state and
local or foreign counterparts or equivalents, in each case as amended from time
to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA AFFILIATE" shall mean each person (as defined in section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower would be
deemed to be a "single employer" (i) within the meaning of section 414(b),(c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary of
the Borrower being or having been a general partner of such person.
"EURODOLLAR LENDING OFFICE" shall mean, with respect to any Lender, the
office of such Lender specified as its Eurodollar Lending Office in Annex I or
in the Assignment Agreement pursuant to which it became a Lender, or such other
6
<PAGE> 12
office or offices for Eurodollar Loans of such Lender as such Lender may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR LOANS" shall mean each Loan bearing interest at the rates
provided in section 2.8(b).
"EURODOLLAR RATE" shall mean with respect to each Interest Period for a
Eurodollar Loan, (A) either (i) the rate per annum for deposits in Dollars of
amounts in same day funds comparable to the outstanding principal amount of the
Eurodollar Loan for which an interest rate is then being determined for a
maturity most nearly comparable to such Interest Period which appears on page
3750 of the Dow Jones Telerate Screen as of 11:00 A.M. (local time at the Notice
Office) on the date which is two Business Days prior to the commencement of such
Interest Period, or (ii) if such a rate does not appear on such page, an
interest rate per annum equal to the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in Dollars are offered to each of the
Reference Banks by prime banks in the London interbank Eurodollar market for
deposits of amounts in Dollars in same day funds comparable to the outstanding
principal amount of the Eurodollar Loan for which an interest rate is then being
determined with maturities comparable to the Interest Period to be applicable to
such Eurodollar Loan, determined as of 11:00 A.M. (London time) on the date
which is two Business Days prior to the commencement of such Interest Period, in
each case divided (and rounded upward to the nearest whole multiple of 1/16th of
1%) by (B) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves and without benefit of credits for
proration, exceptions or offsets which may be available from time to time)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or any successor category
of liabilities under Regulation D).
"EVENT OF DEFAULT" shall have the meaning provided in section 10.1.
"EXISTING INDEBTEDNESS" shall have the meaning provided in section
7.18.
"EXISTING INDEBTEDNESS AGREEMENTS" shall have the meaning provided in
section 7.18.
"EXISTING LETTER OF CREDIT" shall have the meaning provided in section
3.1(d).
"FACILITY" shall mean the Term Loan Facility, the General Revolving
Facility or the Swing Line Revolving Facility, as applicable.
"FACILITY FEE" shall have the meaning provided in section 4.1(a).
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative Agent.
"FEES" shall mean all amounts payable pursuant to, or referred to in,
section 4.1.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary (i) which is not
incorporated in the United States and substantially all of whose assets and
properties are located, or substantially all of whose business is carried on,
outside the United States, or (ii) substantially all of whose assets consist of
Subsidiaries that are Foreign Subsidiaries as defined in clause (i) of this
definition.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to sections 1.3 and 12.7(a).
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"GENERAL REVOLVING COMMITMENT" shall mean, with respect to each Lender,
the amount, if any, set forth opposite such Lender's name in Annex I as its
"General Revolving Commitment" as the same may be reduced from time to time
pursuant to section 4.2, 4.3 and/or 10.2 or adjusted from time to time as a
result of assignments to or from such Lender pursuant to section 12.4.
"GENERAL REVOLVING FACILITY" shall mean the credit facility evidenced
by the Total General Revolving Commitment.
"GENERAL REVOLVING FACILITY PERCENTAGE" shall mean at any time for any
Lender with a General Revolving Commitment, the percentage obtained by dividing
such Lender's General Revolving Commitment by the Total General Revolving
Commitment, PROVIDED, that if the Total General Revolving Commitment has been
terminated, the General Revolving Facility Percentage for each Lender with a
General Revolving Commitment shall be determined by dividing such Lender's
General Revolving Commitment immediately prior to such termination by the Total
General Revolving Commitment immediately prior to such termination.
"GENERAL REVOLVING LOAN" shall have the meaning provided in section
2.1(b).
"GENERAL REVOLVING MATURITY DATE" shall mean March 31, 2003, unless
earlier terminated, or extended in accordance with section 4.4.
"GENERAL REVOLVING NOTE" shall have the meaning provided in section
2.6(a).
"GUARANTY OBLIGATIONS" shall mean as to any person (without
duplication) any obligation of such person guaranteeing any Indebtedness
("PRIMARY INDEBTEDNESS") of any other person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such person, whether or not contingent, (a) to purchase any such
primary Indebtedness or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary Indebtedness or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary Indebtedness of the
ability of the primary obligor to make payment of such primary Indebtedness, or
(d) otherwise to assure or hold harmless the owner of such primary Indebtedness
against loss in respect thereof, PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary Indebtedness in respect of which such Guaranty Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such person is required to perform
thereunder) as determined by such person in good faith.
"HAZARDOUS MATERIALS" shall mean (i) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (ii) any chemicals, materials or substances defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "restricted hazardous materials", "extremely hazardous
wastes", "restrictive hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect, under any applicable Environmental Law.
"HEDGE AGREEMENT" shall mean (i) any interest rate swap agreement, any
interest rate cap agreement, any interest rate collar agreement or other similar
agreement or arrangement designed to protect against fluctuations in interest
rates, and (ii) any currency swap agreement, forward currency purchase agreement
or similar agreement or arrangement designed to protect against fluctuations in
currency exchange rates.
"INDEBTEDNESS" of any person shall mean without duplication:
(i) all indebtedness of such person for borrowed money;
(ii) all bonds, notes, debentures and similar debt securities
of such person;
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<PAGE> 14
(iii) the deferred purchase price of capital assets or
services which in accordance with GAAP would be shown on the liability
side of the balance sheet of such person;
(iv) the face amount of all letters of credit issued for the
account of such person and, without duplication, all drafts drawn
thereunder;
(v) all obligations, contingent or otherwise, of such person
in respect of bankers' acceptances;
(vi) all Indebtedness of a second person secured by any Lien
on any property owned by such first person, whether or not such
indebtedness has been assumed;
(vii) all Capitalized Lease Obligations of such person;
(viii) the present value, determined on the basis of the
implicit interest rate, of all basic rental obligations under all
"synthetic" leases (I.E. leases accounted for by the lessee as
operating leases under which the lessee is the "owner" of the leased
property for Federal income tax purposes);
(ix) all obligations of such person to pay a specified
purchase price for goods or services whether or not delivered or
accepted, I.E., take-or-pay and similar obligations;
(x) all net obligations of such person under Hedge Agreements;
(xi) the full outstanding balance of trade receivables, notes
or other instruments sold with full recourse (and the portion thereof
subject to potential recourse, if sold with limited recourse), other
than in any such case any thereof sold solely for purposes of
collection of delinquent accounts;
(xii) the stated value, or liquidation value if higher, of all
Redeemable Stock of such person; and
(xiii) all Guaranty Obligations of such person;
PROVIDED that (x) neither trade payables nor other similar accrued expenses, in
each case arising in the ordinary course of business, nor obligations in respect
of insurance policies or performance or surety bonds which themselves are not
guarantees of Indebtedness (nor drafts, acceptances or similar instruments
evidencing the same nor obligations in respect of letters of credit supporting
the payment of the same), shall constitute Indebtedness; and (y) the
Indebtedness of any person shall in any event include (without duplication) the
Indebtedness of any other entity (including any general partnership in which
such person is a general partner) to the extent such person is liable thereon as
a result of such person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide expressly
that such person is not liable thereon.
"INTEREST COVERAGE RATIO" shall mean, for any Testing Period, the ratio
of (i) Consolidated EBIT to (ii) Consolidated Interest Expense, in each case on
a consolidated basis for the Borrower and its Subsidiaries for such Testing
Period.
"INTEREST PERIOD" with respect to any Eurodollar Loan shall mean the
interest period applicable thereto, as determined pursuant to section 2.9.
"IPO" shall have the meaning provided in section 6.1(h).
"KEYBANK" shall mean KeyBank National Association, a national banking
association, together with its successors and assigns.
"LEASEHOLDS" of any person means all the right, title and interest of
such person as lessee or licensee in, to and under leases or licenses of land,
improvements and/or fixtures.
"LENDER" shall have the meaning provided in the first paragraph of this
Agreement.
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<PAGE> 15
"LENDER DEFAULT" shall mean (i) the refusal (which has not been
retracted) of a Lender in violation of the requirements of this Agreement to
make available its portion of any incurrence of Loans or to fund its portion of
any unreimbursed payment under section 3.4(c) or (ii) a Lender having notified
the Administrative Agent and/or the Borrower that it does not intend to comply
with the obligations under section 2.1 and/or section 3.4(c), in the case of
either (i) or (ii) as a result of the appointment of a receiver or conservator
with respect to such Lender at the direction or request of any regulatory agency
or authority.
"LENDER REGISTER" shall have the meaning provided in section 12.16.
"LETTER OF CREDIT" shall have the meaning provided in section 3.1(a).
"LETTER OF CREDIT DOCUMENTS" shall have the meaning specified in
section 3.2(a).
"LETTER OF CREDIT FEE" shall have the meaning provided in section
4.1(b).
"LETTER OF CREDIT ISSUER" shall mean (i) in respect of each Existing
Letter of Credit, the Lender that has issued same as of the Effective Date;
and/or (ii) any other Lender that is requested, and agrees, to so act by the
Borrower, and is approved by the Administrative Agent and the Required Lenders;
PROVIDED, that unless otherwise agreed by the Borrower and KeyBank, KeyBank will
act as the Letter of Credit Issuer for Letters of Credit issued after the
Effective Date for any of the purposes contemplated by section 3.1(a).
"LETTER OF CREDIT OUTSTANDINGS" shall mean, at any time, the sum,
without duplication, of (i) the aggregate Stated Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings.
"LETTER OF CREDIT REQUEST" shall have the meaning provided in section
3.2(a).
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement or any lease
in the nature thereof).
"LOAN" shall have the meaning provided in section 2.1 and shall include
any Term Loan, General Revolving Loan or Swing Line Revolving Loan, as the case
may be.
"MARGIN STOCK" shall have the meaning provided in Regulation U.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations, property, assets, liabilities or financial condition of,
(i) when used with reference to the Borrower or any of its Subsidiaries, the
Borrower and its Subsidiaries, taken as a whole, or (ii) when used with
reference to any other person, such person and its Subsidiaries, taken as a
whole, as the case may be.
"MATERIAL SUBSIDIARY" shall mean, at any time, with reference to any
person, any Subsidiary of such person (i) that has assets at such time
comprising 5% or more of the consolidated assets of such person and its
Subsidiaries, or (ii) whose operations in the current fiscal year are expected
to, or whose operations in the most recent fiscal year did (or would have if
such person had been a Subsidiary for such entire fiscal year), represent 5% or
more of the consolidated earnings before interest, taxes, depreciation and
amortization of such person and its Subsidiaries for such fiscal year.
"MINIMUM BORROWING AMOUNT" shall mean:
(i) for Term Loans which are (A) Prime Rate Loans, $100,000,
with minimum increments thereafter of $25,000, or (B) Eurodollar Loans,
$3,000,000, with minimum increments thereafter of $500,000;
(ii) for General Revolving Loans which are (A) Prime Rate
Loans, $100,000, with minimum increments thereafter of $25,000, or (B)
Eurodollar Loans, $3,000,000, with minimum increments thereafter of
$500,000; and
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(iii) for Swing Line Revolving Loans, $100,000, with minimum
increments thereafter of $25,000.
"MONEY MARKET RATE LOAN" shall mean each Swing Line Revolving Loan
bearing interest at a rate provided in section 2.8(c).
"MOODY'S" shall mean Moody's Investors Service, Inc. and its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan, as defined in
section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions or has within any of the
preceding three plan years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" shall mean an employee benefit plan, other
than a Multiemployer Plan, to which the Borrower or any ERISA Affiliate, and one
or more employers other than the Borrower or an ERISA Affiliate, is making or
accruing an obligation to make contributions or, in the event that any such plan
has been terminated, to which the Borrower or an ERISA Affiliate made or accrued
an obligation to make contributions during any of the five plan years preceding
the date of termination of such plan.
"NET CASH PROCEEDS" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of (i) reasonable and customary expenses
of sale incurred in connection with such Asset Sale, and other reasonable and
customary fees and expenses incurred, and all state, and local taxes paid or
reasonably estimated to be payable by such person, as a consequence of such
Asset Sale and the payment of principal, premium and interest of Indebtedness
secured by the asset which is the subject of the Asset Sale and required to be,
and which is, repaid under the terms thereof as a result of such Asset Sale,
(ii) amounts of any distributions payable to holders of minority interests in
the relevant person or in the relevant property or assets and (iii) incremental
income taxes paid or payable as a result thereof.
"1934 ACT" shall mean the Securities Exchange Act of 1934, as amended.
"NON-DEFAULTING LENDER" shall mean each Lender other than a Defaulting
Lender.
"NOTE" shall mean a Term Note, a General Revolving Note or a Swing Line
Revolving Note, as the case may be.
"NOTICE OF BORROWING" shall have the meaning provided in section
2.3(a).
"NOTICE OF CONVERSION" shall have the meaning provided in section 2.7.
"NOTICE OFFICE" shall mean the office of the Administrative Agent at
Key Center, 127 Public Square, Cleveland, Ohio 44114, Attention: Large Corporate
Group (facsimile: (216) 689-4981), or such other office, located in a city in
the United States Eastern Time Zone, as the Administrative Agent may designate
to the Borrower from time to time.
"NOTICE OF SWING LINE REFUNDING" shall have the meaning provided in
section 2.5(a).
"OBLIGATIONS" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing by the
Borrower or any other Credit Party to the Administrative Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"PARTICIPANT" shall have the meaning provided in section 3.4(a).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent at
Key Center, 127 Public Square, Cleveland, Ohio 44114, Attention: Sandy Wilder of
the Large Corporate Group (telephone: (216) 689-4448; facsimile: (216)
689-4981), or such other office, located in a city in the United States Eastern
Time Zone, as the Administrative Agent may designate to the Borrower from time
to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
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<PAGE> 17
"PERCENTAGE" shall mean the Term Facility Percentage or the General
Revolving Facility Percentage, as applicable.
"PERMITTED ACQUISITION" shall mean and include any Acquisition as to
which all of the following conditions are satisfied:
(i) such Acquisition (A) involves a line or lines of business
which is complementary to the lines of business in which the Borrower
and its Subsidiaries, considered as an entirety, are engaged on the
Effective Date, and (B) involves a line or lines of business which has
generated a positive earnings before interest, income taxes,
depreciation and amortization for its most recently completed four full
fiscal quarters for which financial information is available, UNLESS
the Required Lenders specifically approve or consent to such
Acquisition in writing;
(ii) such Acquisition is not actively opposed by the Board of
Directors (or similar governing body) of the selling person or the
person whose equity interests are to be acquired, UNLESS all of the
Lenders specifically approve or consent to such Acquisition in writing;
(v) the Borrower would, after giving effect to such
Acquisition, be in compliance, on a PRO FORMA basis, with the financial
covenants contained in sections 9.8 and 9.9; and
(vi) if the aggregate consideration for such Acquisition,
including the principal amount of any assumed Indebtedness and (without
duplication) any Indebtedness of any acquired person or persons,
exceeds $10,000,000, at least 10 Business Days prior to the completion
of such transaction the Borrower shall have delivered to the Lenders a
certificate of a responsible financial or accounting officer of the
Borrower demonstrating, in reasonable detail, the computation of the
ratios referred to in sections 9.8 and 9.9 on a PRO FORMA basis, such
PRO FORMA ratios being determined as if (x) such Acquisition had been
completed at the beginning of the most recent period of four
consecutive fiscal quarters of the Borrower for which financial
information for the Borrower and the business or person to be acquired,
is available and has been delivered to the Lenders at least 10 Business
Days prior to the completion of such transaction (which shall in the
case of the acquired business include audited financial statements for
the most recent fiscal year, unless the same are unavailable and
unaudited financial statements are acceptable to the Required Lenders),
and (y) any such Indebtedness, or other Indebtedness incurred to
finance such Acquisition, had been outstanding for such period;
PROVIDED, that the term Permitted Acquisition specifically excludes any loans,
advances or minority investments otherwise permitted pursuant to section 9.5.
"PERMITTED LIENS" shall mean Liens described in section 9.3.
"PERSON" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" shall mean any multiemployer or single-employer plan as defined
in section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute by) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, or a Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"PRIME RATE" shall mean, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the rate of interest established by the Administrative
Agent at its principal office, from time to time, as its prime rate, whether or
not publicly announced, which interest rate may or may not be the lowest rate
charged by it for commercial loans or other extensions of credit.
"PRIME RATE LOAN" shall mean each Loan bearing interest at the rate
provided in section 2.8(a).
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"PROHIBITED TRANSACTION" shall mean a transaction with respect to a
Plan that is prohibited under section 4975 of the Code or section 406 of ERISA
and not exempt under section 4975 of the Code or section 408 of ERISA.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Section 6901 ET SEQ.
"REAL PROPERTY" of any person shall mean all of the right, title and
interest of such person in and to land, improvements and fixtures, including
Leaseholds.
"REDEEMABLE STOCK" shall mean with respect to any person any capital
stock or similar equity interests of such person that (i) is by its terms
subject to mandatory redemption, in whole or in part, pursuant to a sinking
fund, scheduled redemption or similar provisions, at any time prior to the
Maturity Date; or (ii) otherwise is required to be repurchased or retired on a
scheduled date or dates, upon the occurrence of any event or circumstance, at
the option of the holder or holders thereof, or otherwise, at any time prior to
the Maturity Date, other than any such repurchase or retirement occasioned by a
"change of control" or similar event.
"REFERENCE BANKS" shall mean (i) KeyBank, and (ii) any other Lender or
Lenders selected as a Reference Bank by the Administrative Agent and the
Required Lenders, PROVIDED, that if any of such Reference Banks is no longer a
Lender, such other Lender or Lenders as may be selected by the Administrative
Agent acting on instructions from the Required Lenders.
"REGISTRATION STATEMENT" shall have the meaning provided in section
7.8(c).
"REGULATION D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing margin requirements.
"REPORTABLE EVENT" shall mean an event described in section 4043 of
ERISA or the regulations thereunder with respect to a Plan, other than those
events as to which the notice requirement is waived under subsections .22, .23,
.25, .27, .28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67 of PBGC
Regulation section 4043.
"REQUIRED GENERAL REVOLVING LENDERS" shall mean Non-Defaulting Lenders
whose outstanding General Revolving Loans and Unutilized General Revolving
Commitments constitute more than 66+2/3% of the sum of the total outstanding
General Revolving Loans and Unutilized General Revolving Commitments of
Non-Defaulting Lenders (PROVIDED that, for purposes hereof, neither the
Borrower, nor any of its Affiliates, shall be included in (i) the Lenders
holding such amount of the General Revolving Loans or having such amount of the
Unutilized General Revolving Commitments, or (ii) determining the aggregate
unpaid principal amount of the General Revolving Loans or Unutilized General
Revolving Commitments).
"REQUIRED LENDERS" shall mean both Required General Revolving Lenders
and Required Term Lenders.
"REQUIRED TERM LENDERS" shall mean Non-Defaulting Lenders whose
outstanding Term Loans and Unutilized Term Loan Commitments constitute more than
66+2/3% of the sum of the total outstanding Term Loans and Unutilized Term Loan
Commitments of Non-Defaulting Lenders (PROVIDED that, for purposes hereof,
neither the Borrower, nor any of its Affiliates, shall be included in (i) the
Lenders holding such amount of the Term Loans or having such amount of the
Unutilized Term Loan Commitments, or (ii) determining the aggregate unpaid
principal amount of the Term Loans or Unutilized Term Loan Commitments).
"SALE AND LEASE-BACK TRANSACTION" shall mean any arrangement with any
person providing for the leasing by the Borrower or any Subsidiary of the
Borrower of any property (except for temporary leases for a term, including any
renewal thereof, of not more than one year and except for leases between the
Borrower and a Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Borrower or such Subsidiary to such person.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., and its successors.
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"SCHEDULED REPAYMENT" shall have the meaning provided in section 5.2.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC REGULATION D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"SECTION 5.5(B)(II) CERTIFICATE" shall have the meaning provided in
section 5.5(b)(ii).
"SENIOR NOTES" shall mean the $100,000,000 aggregate original principal
amount of the Borrower's Senior Notes due December 1, 2003.
"SENIOR SUBORDINATED NOTES" shall mean the $30,000,000 aggregate
original principal amount of the Borrower's Senior Subordinated Notes, maturing
on various dates through June 30, 2005.
"STANDARD PERMITTED LIENS" shall mean the following:
(i) Liens for taxes not yet delinquent or Liens for taxes
being contested in good faith and by appropriate proceedings for which
adequate reserves (in the good faith judgment of the management of the
Borrower) have been established;
(ii) Liens in respect of property or assets imposed by law
which were incurred in the ordinary course of business, such as
carriers', warehousemen's, materialmen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business, which do not
in the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of the Borrower and its Subsidiaries considered as an
entirety;
(iii) Liens created by this Agreement or the other Credit
Documents;
(iv) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under section
10.1(g);
(v) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; and mechanic's Liens, carrier's Liens, and other Liens to
secure the performance of tenders, statutory obligations, contract
bids, government contracts, performance and return-of-money bonds and
other similar obligations, incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed
money), whether pursuant to statutory requirements, common law or
consensual arrangements;
(vi) Leases or subleases granted to others not interfering in
any material respect with the business of the Borrower or any of its
Subsidiaries and any interest or title of a lessor under any lease not
in violation of this Agreement;
(vii) easements, rights-of-way, zoning or deed restrictions,
minor defects or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries
considered as an entirety; and
(viii) Liens arising from financing statements regarding
property subject to leases not in violation of the requirements of this
Agreement, PROVIDED that such Liens are only in respect of the property
subject to, and secure only, the respective lease (and any other lease
with the same or an affiliated lessor).
"STANDBY LETTER OF CREDIT" shall have the meaning provided in section
3.1(a).
"STATED AMOUNT" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions or other
requirements for drawing could then be met).
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"SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness which has been
subordinated to the Obligations in such manner and to such extent as the
Administrative Agent (acting on instructions from the Required Lenders) may
require.
"SUBSIDIARY" of any person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" shall mean any Subsidiary which is a party to
the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" shall have the meaning provided in section
6.1(c).
"SWING LINE LENDER" shall have the meaning provided in the introductory
paragraph hereof and shall include any other single Lender to whom the Swing
Line Lender has transferred its entire Swing Line Revolving Commitment and any
Swing Line Revolving Loans.
"SWING LINE REVOLVING COMMITMENT" shall mean, with respect to the Swing
Line Lender, the amount set forth opposite such Lender's name in Annex I as its
"Swing Line Revolving Commitment" as the same may be reduced from time to time
pursuant to section 4.2, 4.3 and/or 10.2 or adjusted from time to time as a
result of assignments to or from the Swing Line Lender pursuant to section 12.4.
"SWING LINE REVOLVING FACILITY" shall mean the credit facility
evidenced by the Swing Line Revolving Commitment.
"SWING LINE REVOLVING LOAN" shall have the meaning provided in section
2.1(c).
"SWING LINE REVOLVING NOTE" shall have the meaning provided in section
2.6(a).
"SYNDICATION DATE" shall mean the earlier of (i) the date which is 90
days after the Effective Date, and (ii) the date which the Syndication Agent
determines in its sole discretion (and notifies the Borrower) that the primary
syndication by the initial Lender hereunder of portions of its Term Loan
Commitment and its General Revolving Commitment to new Lenders has been
completed.
"TAXES" shall have the meaning provided in section 5.5.
"TERM FACILITY PERCENTAGE" shall mean at any time for any Lender with a
Term Loan Commitment, the percentage obtained by dividing such Lender's Term
Loan Commitment by the Total Term Loan Commitment, PROVIDED, that if the Total
Term Loan Commitment has been terminated, the Term Facility Percentage for each
Lender with a Term Loan Commitment shall be determined by dividing such Lender's
Term Loan Commitment immediately prior to such termination by the Total Term
Loan Commitment immediately prior to such termination.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender, the
amount, if any, set forth opposite such Lender's name in Annex I as its "Term
Loan Commitment" as the same may be reduced from time to time pursuant to
section 4.2, 4.3 and/or 10.2 or adjusted from time to time as a result of
assignments to or from such Lender pursuant to section 12.4.
"TERM LOAN FACILITY" shall mean the credit facility evidenced by the
Total Term Loan Commitment.
"TERM LOAN" shall have the meaning provided in section 2.1(a).
"TERM LOAN MATURITY DATE" shall have the meaning provided in section
5.2.
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"TERM NOTE" shall have the meaning provided in section 2.6(a).
"TESTING PERIOD" shall mean (i) for the determination of the Interest
Coverage Ratio as of June 30, 1998 or as of September 30, 1998, a single period
consisting of the consecutive fiscal quarters in the same fiscal year of the
Borrower ended on such date, and, and (ii) for any determination of the Interest
Coverage Ratio as of December 31, 1998 or as of any subsequent date, or for any
other determination (including, without limitation, determinations of
Consolidated EBITDA), a single period consisting of the four consecutive fiscal
quarters of the Borrower then last ended (whether or not such quarters are all
within the same fiscal year).
"TOTAL COMMITMENT" shall mean the sum of the Commitments of the
Lenders.
"TOTAL GENERAL REVOLVING COMMITMENT" shall mean the sum of the General
Revolving Commitments of the Lenders.
"TOTAL TERM LOAN COMMITMENT" shall mean the sum of the Term Loan
Commitments of the Lenders.
"TYPE" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Prime Rate Loan, Eurodollar Loan or
Money Market Rate Loan.
"UCC" shall mean the Uniform Commercial Code.
"UNFUNDED CURRENT LIABILITY" of any Plan shall mean the amount, if any,
by which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 87, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
"UNITED STATES" and "U.S." each means United States of America.
"UNPAID DRAWING" shall have the meaning provided in section 3.3(a).
"UNUTILIZED GENERAL REVOLVING COMMITMENT" for any Lender at any time
shall mean the excess of (i) such Lender's General Revolving Commitment at such
time over (ii) the sum of the principal amount of General Revolving Loans made
by such Lender and outstanding at such time and (y) such Lender's General
Revolving Facility Percentage of Letter of Credit Outstandings at such time.
"UNUTILIZED SWING LINE REVOLVING COMMITMENT" for the Swing Line Lender
at any time shall mean the excess of (i) the Swing Line Lender's Swing Line
Revolving Commitment at such time over (ii) the aggregate principal amount of
Swing Line Revolving Loans made by the Swing Line Lender and outstanding at such
time.
"UNUTILIZED TOTAL GENERAL REVOLVING COMMITMENT" shall mean, at any
time, the excess of (i) the Total General Revolving Commitment at such time over
(ii) the sum of (x) the aggregate principal amount of all General Revolving
Loans then outstanding plus (y) the aggregate Letter of Credit Outstandings at
such time.
"WHOLLY-OWNED SUBSIDIARY" shall mean each Subsidiary of the Borrower at
least 95% of whose capital stock, equity interests and partnership interests,
other than director's qualifying shares or similar interests, are owned directly
or indirectly by the Borrower.
"WRITTEN", "WRITTEN" or "IN WRITING" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
1.2. COMPUTATION OF TIME PERIODS. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
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1.3. ACCOUNTING TERMS. Except as otherwise specifically provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; PROVIDED that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision of section 8 or 9 hereof to eliminate the effect of
any change occurring after the Effective Date in GAAP or in the application
thereof to such provision (or if the Administrative Agent notifies the Borrower
that the Required Lenders request an amendment to any such provision hereof for
such purposes), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance with the requirements of this
Agreement.
1.4. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise, (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any person shall be construed to include such person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to sections, Annexes
and Exhibits shall be construed to refer to sections of, and Annexes and
Exhibits to, this Agreement, and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all real
property, tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, and interests in any of the foregoing.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. COMMITMENTS FOR LOANS. Subject to and upon the terms and
conditions herein set forth, each Lender severally agrees to make a loan or
loans (each a "Loan" and, collectively, the "Loans") to the Borrower, which
Loans shall be drawn, to the extent such Lender has a Commitment under a
Facility for the Borrower, under the applicable Facility, as set forth below:
(a) TERM LOAN FACILITY. Loans to the Borrower under the Term
Loan Facility (each a "TERM LOAN" and, collectively, the "TERM LOANS")
(i) may be made only on the Closing Date; (ii) shall be made only in
U.S. Dollars; (iii) except as otherwise provided, may, at the option of
the Borrower, be incurred and maintained as, or converted into, Term
Loans which are either Prime Rate Loans or Eurodollar Loans, PROVIDED
that all Term Loans made as part of the same Borrowing shall, unless
otherwise specifically provided herein, consist of Term Loans of the
same Type; (iv) may be repaid or prepaid in accordance with the
provisions hereof, but once repaid or prepaid may not be reborrowed;
and (v) shall not exceed for any Lender at any time outstanding such
Lender's Term Loan Commitment at such time.
(b) GENERAL REVOLVING FACILITY. Loans to the Borrower under
the General Revolving Facility (each a "GENERAL REVOLVING LOAN" and,
collectively, the "GENERAL REVOLVING Loans") (i) may be made at any
time and from time to time on and after the Closing Date and prior to
the General Revolving Maturity Date; (ii) shall be made only in U.S.
Dollars; (iii) except as otherwise provided, may, at the option of the
Borrower, be incurred and maintained as, or converted into, General
Revolving Loans which are either Prime Rate Loans or Eurodollar Loans,
PROVIDED that all General Revolving Loans made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist
of General Revolving Loans of the same Type; (iv) may be repaid or
prepaid and reborrowed in accordance with the provisions hereof; (v)
may only be made if after giving effect thereto the Unutilized Total
General Revolving Commitment exceeds the outstanding Swing Line
Revolving Loans; and (vi) shall not exceed for any Lender at any time
outstanding that aggregate principal amount which, when added to the
product at such time of (A) such Lender's General Revolving Facility
Percentage, TIMES (B) the aggregate Letter of Credit Outstandings,
equals the General Revolving Commitment of such Lender at such time.
(c) SWING LINE REVOLVING FACILITY. Loans to the Borrower under
the Swing Line Revolving Facility (each a "SWING LINE REVOLVING LOAN"
and, collectively, the "SWING LINE REVOLVING LOANS") (i) shall be
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made only by the Swing Line Lender, (ii) may be made at any time and
from time to time on and after the Closing Date and prior to the
General Revolving Maturity Date; (iii) shall be made only in U.S.
Dollars; (iv) shall have a maturity of 7 days or less; (v) shall be
incurred only for working capital requirements of the Borrower and its
Subsidiaries; (vi) may only be incurred as Prime Rate Loans or as Money
Market Rate Loans; (vii) may be repaid or prepaid and reborrowed in
accordance with the provisions hereof; (viii) may only be made if after
giving effect thereto the Unutilized Total General Revolving Commitment
exceeds the outstanding Swing Line Revolving Loans; and (ix) shall not
exceed for the Swing Line Lender at any time outstanding its Swing Line
Revolving Commitment at such time.
2.2. MINIMUM BORROWING AMOUNTS, ETC.; PRO RATA BORROWINGS. (a) The
aggregate principal amount of each Borrowing by the Borrower shall not be less
than the Minimum Borrowing Amount. More than one Borrowing may be incurred by
the Borrower on any day, PROVIDED that (i) if there are two or more Borrowings
on a single day under the same Facility which consist of Eurodollar Loans, each
such Borrowing shall have a different initial Interest Period, (ii) only one
Borrowing under the Swing Line Revolving Facility may be made on any single day,
and (iii) at no time shall there be more than 7 Borrowings which are Eurodollar
Loans outstanding hereunder.
(b) All Borrowings under a Facility shall be made by the Lenders having
Commitments under such Facility PRO RATA on the basis of their respective
Commitments under such Facility. It is understood that no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans
hereunder and that each Lender shall be obligated to make the Loans provided to
be made by it hereunder, regardless of the failure of any other Lender to
fulfill its Commitment hereunder.
2.3. BORROWING PROCEDURES. (a) NOTICE OF BORROWING. Whenever the
Borrower desires to incur Loans, it shall give the Administrative Agent at its
Notice Office,
(A) BORROWINGS OF EURODOLLAR LOANS UNDER ANY FACILITY: in the
case of any Borrowing under any Facility of Eurodollar Loans to be made
hereunder, prior to 11:00 A.M. (local time at its Notice Office), at
least three Business Days' prior written or telephonic notice thereof
(in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent),
(B) BORROWINGS OF PRIME RATE LOANS ANY FACILITY: in the case
of any Borrowing under any Facility of Prime Rate Loans to be made
hereunder, prior to 12:00 noon (local time at its Notice Office) on the
proposed date thereof written or telephonic notice thereof (in the case
of telephonic notice, promptly confirmed in writing if so requested by
the Administrative Agent), or
(C) BORROWINGS UNDER THE SWING LINE REVOLVING FACILITY OF
MONEY MARKET RATE LOANS: in the case of any Borrowing under the Swing
Line Revolving Facility of Money Market Rate Loans to be made
hereunder, if the Administrative Agent shall have furnished the
Borrower with a Quoted Rate therefor, prior to 12:00 noon (local time
at its Notice Office) on the proposed date thereof (which shall be
within such period as the Administrative Agent shall have specified for
such Quoted Rate) written or telephonic notice thereof (in the case of
telephonic notice, promptly confirmed in writing if so requested by the
Administrative Agent).
Each such notice (each such notice, a "NOTICE OF BORROWING") shall (if requested
by the Administrative Agent to be confirmed in writing), be substantially in the
form of Exhibit B-1, and in any event shall be irrevocable and shall specify:
(i) the Facility under which the Borrowing is to be incurred; (ii) the aggregate
principal amount of the Loans to be made pursuant to such Borrowing; (iii) the
date of the Borrowing (which shall be a Business Day); (iv) whether the
Borrowing shall consist of Prime Rate Loans, Eurodollar Loans or Money Market
Rate Loans; (v) if the Borrowing consists of Swing Line Revolving Loans, the
maturity date thereof (which shall not be more than 7 days), and if such Swing
Line Revolving Loans are Money Market Rate Loans, the Quoted Rate therefor; and
(vi) if the requested Borrowing consists of Eurodollar Loans, the Interest
Period to be initially applicable thereto. If the Borrower fails to specify in a
Notice of Borrowing the maturity date of any Swing Line Revolving Loans, such
maturity date shall be deemed to be 7 days. The Administrative Agent shall
promptly give each Lender which has a Commitment under any applicable Facility
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing under the applicable Facility, of such Lender's proportionate
share thereof and of the other matters covered by the Notice of Borrowing
relating thereto.
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(b) BORROWINGS OF MONEY MARKET RATE LOANS. Whenever the Borrower
proposes to submit a Notice of Borrowing with respect to Swing Line Revolving
Loans which will be Money Market Rate Loans, it will prior to submitting such
Notice of Borrowing notify the Administrative Agent of its intention and request
the Administrative Agent to quote a fixed or floating interest rate (the "QUOTED
RATE") to be applicable thereto prior to the proposed maturity thereof. The
Administrative Agent will immediately so notify the Swing Line Lender, and if
the Swing Line Lender is agreeable to a particular interest rate for the
proposed maturity of such Money Market Rate Loans if such Loans are made on or
prior to a specified date, the Administrative Agent shall quote such interest
rate to the Borrower as the Quoted Rate applicable to such proposed Money Market
Rate Loans if made on or before such specified date for a maturity as so
proposed by the Borrower. The Swing Line Lender contemplates that any Quoted
Rate will be a rate of interest which reflects a margin corresponding to (or
greater than) the sum of (x) the Applicable Eurodollar Margin in effect at the
time of quotation of any Quoted Rate, PLUS (y) the Applicable Facility Fee Rate
in effect at such time, over the then prevailing Federal Funds Effective Rate,
commercial paper, call money, overnite repurchase or other commonly quoted
interest rate, in each case as selected by the Swing Line Lender. Nothing herein
shall be deemed to permit any Lender other than the Swing Line Lender any right
of approval with respect to a Quoted Rate.
(c) ACTIONS BY ADMINISTRATIVE AGENT ON TELEPHONE NOTICE. Without in any
way limiting the obligation of the Borrower to confirm in writing any telephonic
notice permitted to be given hereunder, the Administrative Agent may act prior
to receipt of written confirmation without liability upon the basis of such
telephonic notice believed by the Administrative Agent in good faith to be from
an Authorized Officer of the Borrower entitled to give telephonic notices under
this Agreement on behalf of the Borrower. In each such case, the Administrative
Agent's record of the terms of such telephonic notice shall be conclusive absent
manifest error.
2.4. DISBURSEMENT OF FUNDS. (a) No later than 2:00 P.M. (local time at
the Payment Office) on the date specified in each Notice of Borrowing, each
Lender with a Commitment under the Facility under which any Borrowing pursuant
to such Notice of Borrowing is to be made will make available its PRO RATA
share, if any, of each Borrowing under such Facility requested to be made on
such date in the manner provided below. All amounts shall be made available to
the Administrative Agent in U.S. dollars and immediately available funds at the
Payment Office and the Administrative Agent promptly will make available to the
Borrower by depositing to its account at the Payment Office the aggregate of the
amounts so made available in the type of funds received. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such
amount available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender and the Administrative Agent has made
available same to the Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from such
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (x) if paid by such Lender, the overnight Federal Funds Effective
Rate or (y) if paid by the Borrower, the then applicable rate of interest,
calculated in accordance with section 2.8, for the respective Loans (but without
any requirement to pay any amounts in respect thereof pursuant to section 2.11).
(b) Nothing herein and no subsequent termination of the Commitments
pursuant to section 4.2 or 4.3 shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder and in existence from time to
time or to prejudice any rights which the Borrower may have against any Lender
as a result of any default by such Lender hereunder.
2.5. REFUNDING OF, OR PARTICIPATION IN, SWING LINE REVOLVING LOANS. (a)
If any Event of Default exists, the Swing Line Lender may, in its sole and
absolute discretion, direct that the Swing Line Revolving Loans owing to it be
refunded by delivering a notice to such effect to the Administrative Agent,
specifying the aggregate principal amount thereof (a "NOTICE OF SWING LINE
REFUNDING"). Promptly upon receipt of a Notice of Swing Line Refunding, the
Administrative Agent shall give notice of the contents thereof to the Lenders
with General Revolving Commitments and, unless an Event
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of Default specified in section 10.1(h) in respect of the Borrower has occurred,
also to the Borrower. Each such Notice of Swing Line Refunding shall be deemed
to constitute delivery by the Borrower of a Notice of Borrowing requesting
General Revolving Loans consisting of Prime Rate Loans in the amount of the
Swing Line Revolving Loans to which it relates. Each Lender with a General
Revolving Commitment (including the Swing Line Lender, in its capacity as a
Lender) hereby unconditionally agrees (notwithstanding that any of the
conditions specified in section 6.2 hereof or elsewhere in this Agreement shall
not have been satisfied, but subject to the provisions of paragraph (b) below)
to make a General Revolving Loan to the Borrower in an amount equal to such
Lender's General Revolving Facility Percentage of the aggregate amount of the
Swing Line Revolving Loans to which such Notice of Swing Line Refunding relates.
Each such Lender shall make the amount of such General Revolving Loan available
to the Administrative Agent in immediately available funds at the Payment Office
not later than 2:00 P.M. (local time at the Payment Office), if such notice is
received by such Lender prior to 11:00 A.M. (local time at its Domestic Lending
Office), or not later than 2:00 P.M. (local time at the Payment Office) on the
next Business Day, if such notice is received by such Lender after such time.
The proceeds of such General Revolving Loans shall be made immediately available
to the Swing Line Lender and applied by it to repay the principal amount of the
Swing Line Revolving Loans to which such Notice of Swing Line Refunding related.
The Borrower irrevocably and unconditionally agrees that, notwithstanding
anything to the contrary contained in this Agreement, General Revolving Loans
made as herein provided in response to a Notice of Swing Line Refunding shall
constitute General Revolving Loans hereunder consisting of Prime Rate Loans.
(b) If prior to the time a General Revolving Loan would otherwise have
been made as provided above as a consequence of a Notice of Swing Line
Refunding, any of the events specified in section 10.1(h) shall have occurred in
respect of the Borrower or one or more of the Lenders with General Revolving
Commitments shall determine that it is legally prohibited from making a General
Revolving Loan under such circumstances, each Lender (other than the Swing Line
Lender), or each Lender (other than the Swing Line Lender) so prohibited, as the
case may be, shall, on the date such General Revolving Loan would have been made
by it (the "PURCHASE Date"), purchase an undivided participating interest in the
outstanding Swing Line Revolving Loans to which such Notice of Swing Line
Refunding related, in an amount (the "SWING LINE PARTICIPATION Amount") equal to
such Lender's General Revolving Facility Percentage of such Swing Line Revolving
Loans. On the Purchase Date, each such Lender or each such Lender so prohibited,
as the case may be, shall pay to the Swing Line Lender, in immediately available
funds, such Lender's Swing Line Participation Amount, and promptly upon receipt
thereof the Swing Line Lender shall, if requested by such other Lender, deliver
to such Lender a participation certificate, dated the date of the Swing Line
Lender's receipt of the funds from, and evidencing such Lender's participating
interest in such Swing Line Revolving Loans and its Swing Line Participation
Amount in respect thereof. If any amount required to be paid by a Lender to the
Swing Line Lender pursuant to the above provisions in respect of any Swing Line
Participation Amount is not paid on the date such payment is due, such Lender
shall pay to the Swing Line Lender on demand interest on the amount not so paid
at the overnight Federal Funds Effective Rate from the due date until such
amount is paid in full.
(c) Whenever, at any time after the Swing Line Lender has received from
any other Lender such Lender's Swing Line Participation Amount, the Swing Line
Lender receives any payment from or on behalf of the Borrower on account of the
related Swing Line Revolving Loans, the Swing Line Lender will promptly
distribute to such Lender its General Revolving Facility Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's participating interest was outstanding and funded);
PROVIDED, HOWEVER, that in the event such payment received by the Swing Line
Lender is required to be returned, such Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line
Lender.
(d) Each Lender's obligation to make General Revolving Loans and/or to
purchase participations in connection with a Notice of Swing Line Refunding
(which shall in all events be within such Lender's Unutilized General Revolving
Commitment, taking into account all outstanding participations in connection
with Swing Line Refundings) shall be subject to the conditions that:
(i) such Lender shall have received a Notice of Swing Line
Refunding complying with the provisions hereof, and
(ii) at the time the Swing Line Revolving Loans which are the
subject of such Notice of Swing Line Refunding were made, the Swing
Line Lender had no actual written notice from another Lender that an
Event of Default had occurred and was continuing,
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but otherwise shall be absolute and unconditional, shall be solely for the
benefit of the Swing Line Lender, and shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against any other Lender, any
Credit Party, or any other person, or any Credit Party may have against any
Lender or other person, as the case may be, for any reason whatsoever; (B) the
occurrence or continuance of a Default or Event of Default; (C) any event or
circumstance involving a Material Adverse Effect upon the Borrower; (D) any
breach of any Credit Document by any party thereto; or (E) any other
circumstance, happening or event, whether or not similar to any of the
foregoing.
2.6. NOTES. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made to it by each Lender shall be evidenced (i) if Term
Loans, by a promissory note substantially in the form of Exhibit A-1 with blanks
appropriately completed in conformity herewith (each a "TERM NOTE" and,
collectively, the "TERM NOTES"), (ii) if General Revolving Loans, by a
promissory note substantially in the form of Exhibit A-2 with blanks
appropriately completed in conformity herewith (each a "GENERAL REVOLVING NOTE"
and, collectively, the "GENERAL REVOLVING NOTES"), and (iii) if Swing Line
Revolving Loans, by a promissory note substantially in the form of Exhibit A-3
with blanks appropriately completed in conformity herewith (the "SWING LINE
REVOLVING NOTE").
(b) The Term Note issued to a Lender with a Term Loan Commitment shall:
(i) be executed by the Borrower; (ii) be payable to the order of such Lender and
be dated on or prior to the date the first Loan evidenced thereby is made; (iii)
be in a stated principal amount equal to the Term Loan Commitment of such Lender
and be payable in the principal amount of Term Loans evidenced thereby; (iv)
mature on the Term Loan Maturity Date; (v) bear interest as provided in section
2.8 in respect of the Prime Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby; (vi) be entitled to the installment payments provided for in
section 5.2; (vii) be subject to mandatory prepayment as provided in section
5.3; and (viii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The General Revolving Note issued to a Lender with a General
Revolving Commitment shall: (i) be executed by the Borrower; (ii) be payable to
the order of such Lender and be dated on or prior to the date the first Loan
evidenced thereby is made; (iii) be in a stated principal amount equal to the
General Revolving Commitment of such Lender and be payable in the principal
amount of General Revolving Loans evidenced thereby; (iv) mature on the General
Revolving Maturity Date; (v) bear interest as provided in section 2.8 in respect
of the Prime Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby; (vi) be subject to mandatory prepayment as provided in section 5.3; and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(d) The Swing Line Revolving Note issued to the Swing Line Lender
shall: (i) be executed by the Borrower; (ii) be payable to the order of such
Lender and be dated on or prior to the date the first Loan evidenced thereby is
made; (iii) be in a stated principal amount equal to the Swing Line Revolving
Commitment of such Lender and be payable in the principal amount of Swing Line
Revolving Loans evidenced thereby; (iv) mature as to any Swing Line Revolving
Loan evidenced thereby on the maturity date, not later than the 7th day
following the date such Swing Line Revolving Loan was made, specified in the
applicable Notice of Borrowing; (v) bear interest as provided in section 2.8 in
respect of the Prime Rate Loans or Money Market Rate Loans, as the case may be,
evidenced thereby; (vi) be subject to mandatory prepayment as provided in
section 5.3; and (vii) be entitled to the benefits of this Agreement and the
other Credit Documents.
(e) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any Note, endorse on the reverse side thereof or the grid attached
thereto the outstanding principal amount of Loans evidenced thereby. Failure to
make any such notation or any error in any such notation shall not affect the
Borrower's obligations in respect of such Loans.
2.7. CONVERSIONS OF TERM LOANS AND GENERAL REVOLVING LOANS. The
Borrower shall have the option to convert on any Business Day all or a portion
at least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of the outstanding Loans comprising a Borrowing under the Term
Loan Facility or the General Revolving Facility into a Borrowing or Borrowings
under the same Facility of the other Type of Loan which can be made pursuant to
such Facility, PROVIDED that: (i) no partial conversion of a Borrowing of
Eurodollar Loans shall reduce the outstanding principal amount of the Eurodollar
Loans made pursuant to such Borrowing to less than the Minimum Borrowing Amount
applicable thereto; (ii) any conversion of Eurodollar Loans into Prime Rate
Loans shall be made on, and only on, the last day of an Interest Period for such
Eurodollar Loans; (iii) Prime Rate Loans may only be converted into Eurodollar
Loans if no Default under section 10.1(a) or Event of Default is in existence on
the date of the conversion, UNLESS (x) in the case of Term
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<PAGE> 27
Loans, the Required Term Lenders, or (y) in the case of General Revolving loans,
the Required General Revolving Lenders, otherwise agree; and (iv) Borrowings of
Eurodollar Loans resulting from this section 2.7 shall conform to the
requirements of section 2.2(a). Each such conversion shall be effected by the
Borrower giving the Administrative Agent at its Notice Office, prior to 11:00
A.M. (local time at such Notice Office), at least three Business Days' (or prior
to 1:00 P.M. (local time at such Notice Office) same Business Day's, in the case
of a conversion into Prime Rate Loans) prior written notice (or telephonic
notice promptly confirmed in writing if so requested by the Administrative
Agent) (each a "NOTICE OF CONVERSION"), substantially in the form of Exhibit
B-2, specifying the applicable Facility, the Loans to be so converted, the Type
of Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans. For the avoidance of doubt, the
prepayment or repayment of any General Revolving Loans out of the proceeds of
other General Revolving Loans by the Borrower is not considered a conversion of
Loans into other Loans.
2.8. INTEREST. (a) INTEREST ON PRIME RATE LOANS. The unpaid principal
amount of each Loan which is a Prime Rate Loan shall bear interest from the date
of the Borrowing thereof until maturity (whether by acceleration or otherwise)
at a fluctuating rate per annum which shall at all times be equal to the Prime
Rate in effect from time to time.
(b) INTEREST ON EURODOLLAR LOANS. The unpaid principal amount of each
Eurodollar Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which shall
at all times be the Applicable Eurodollar Margin (as defined below) for such
Eurodollar Loan PLUS the relevant Eurodollar Rate.
(c) INTEREST ON MONEY MARKET RATE LOANS. A Swing Line Revolving Loan
which is a Money Market Rate Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at the
rate per annum which shall be equal to the Quoted Rate therefor.
(d) DEFAULT INTEREST. Notwithstanding the above provisions, if a
Default under section 10.1(a) or Event of Default is in existence, all
outstanding amounts of principal and, to the extent permitted by law, all
overdue interest, in respect of each Loan shall bear interest, payable on
demand, at a rate per annum equal to 2% per annum above the interest rate
otherwise applicable thereto. If any amount (other than the principal of and
interest on the Loans) payable by the Borrower under the Credit Documents is not
paid when due, such amount shall bear interest, payable on demand, at a rate per
annum equal to the Prime Rate in effect from time to time PLUS 2% per annum.
(e) ACCRUAL AND PAYMENT OF INTEREST. Interest shall accrue from and
including the date of any Borrowing to but excluding the date of any prepayment
or repayment thereof and shall be payable:
(i) in the case of any Swing Line Revolving Loan, (A) at the
maturity date thereof, which shall in no event exceed 7 days, (B) on
any prepayment (on the amount prepaid), and (C) after maturity (whether
by acceleration or otherwise), on demand; and
(ii) in the case of any Term Loan or General Revolving Loan,
(A) which is a Prime Rate Loan, quarterly in arrears on the last
Business Day of March, June, September and December, (B) which is a
Eurodollar Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three
months, on the dates which are successively three months after the
commencement of such Interest Period, and (C) on any repayment,
prepayment or conversion (on the amount repaid, prepaid or converted),
at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(f) COMPUTATIONS OF INTEREST. All computations of interest hereunder
shall be made in accordance with section 12.7(b).
(g) INFORMATION AS TO INTEREST RATES. Each Reference Bank agrees to
furnish the Administrative Agent timely information for the purpose of
determining the Eurodollar Rate for any Borrowing consisting of Eurodollar
Loans. If any one or more of the Reference Banks shall not timely furnish such
information, the Administrative Agent shall determine the Eurodollar Rate on the
basis of timely information furnished by the remaining Reference Banks. The
Administrative Agent upon determining the interest rate for any Borrowing shall
promptly notify the Borrower and the affected Lenders thereof.
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<PAGE> 28
(h) APPLICABLE EURODOLLAR MARGIN. As used herein, the term "APPLICABLE
EURODOLLAR MARGIN", as applied to any Loan which is a Eurodollar Loan, means the
particular rate per annum determined by the Administrative Agent in accordance
with the Pricing Grid Table which appears below, based on the Borrower's ratio
of Consolidated Net Debt to Consolidated EBITDA and such Pricing Grid Table, and
the following provisions:
(i) Initially, until changed hereunder in accordance with the
following provisions, the Applicable Eurodollar Margin for General
Revolving Loans will be 100 basis points per annum and the Applicable
Eurodollar Margin for Term Loans will be 125 basis points per annum.
(ii) Commencing with the fiscal quarter of the Borrower ended
on or nearest to June 30, 1998, and continuing with each fiscal quarter
thereafter, the Administrative Agent will determine the Applicable
Eurodollar Margin for any Eurodollar Loan in accordance with the
Pricing Grid Table, based on the Borrower's ratio of (x) Consolidated
Net Debt as of the end of the fiscal quarter, to (y) Consolidated
EBITDA for the Testing Period ended on the last day of the fiscal
quarter, and identified in such Table. Changes in the Applicable
Eurodollar Margin based upon changes in such ratio shall become
effective on the first day of the month following the receipt by the
Administrative Agent pursuant to section 8.1(a) or (b) of the financial
statements of the Borrower, accompanied by the certificate and
calculations referred to in section 8.1(c), demonstrating the
computation of such ratio, based upon the ratio in effect at the end of
the applicable period covered (in whole or in part) by such financial
statements.
(iii) Notwithstanding the above provisions, during any period
when (A) the Borrower has failed to timely deliver its consolidated
financial statements referred to in section 8.1(a) or (b), accompanied
by the certificate and calculations referred to in section 8.1(c), (B)
a Default under section 10.1(a) has occurred and is continuing, or (C)
an Event of Default has occurred and is continuing, the Applicable
Eurodollar Margin shall be the highest rate per annum indicated
therefor in the Pricing Grid Table, regardless of the Borrower's ratio
of Consolidated Net Debt to Consolidated EBITDA at such time.
(iv) Any changes in the Applicable Eurodollar Margin shall be
determined by the Administrative Agent in accordance with the above
provisions and the Administrative Agent will promptly provide notice of
such determinations to the Borrower and the Lenders. Any such
determination by the Administrative Agent pursuant to this section
2.8(h) shall be conclusive and binding absent manifest error.
PRICING GRID TABLE
(EXPRESSED IN BASIS POINTS)
<TABLE>
<CAPTION>
- ----------------------------------------- ----------------------- ------------------------ -------------------------
<S> <C> <C> <C>
APPLICABLE
RATIO OF EURODOLLAR MARGIN APPLICABLE EURODOLLAR
CONSOLIDATED NET DEBT FOR APPLICABLE MARGIN FOR
TO GENERAL REVOLVING FACILITY FEE RATE TERM LOANS
CONSOLIDATED EBITDA LOANS
- ----------------------------------------- ----------------------- ------------------------ -------------------------
greater than or equal to 3.50 to 1.00 140 35 175
- ----------------------------------------- ----------------------- ------------------------ -------------------------
greater than or equal to 3.00 to 1.00 but
less than 3.50 to 1.00 120 30 150
- ----------------------------------------- ----------------------- ------------------------ -------------------------
greater than or equal to 2.50 to 1.00 but
less than 3.00 to 1.00 100 25 125
- ----------------------------------------- ----------------------- ------------------------ -------------------------
greater than or equal to 2.00 to 1.00 but
less than 2.50 to 1.00 80 20 100
- ----------------------------------------- ----------------------- ------------------------ -------------------------
less than 2.00 to 1.00 60 15 75
- ----------------------------------------- ----------------------- ------------------------ -------------------------
</TABLE>
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<PAGE> 29
2.9. INTEREST PERIODS. (a) At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 11:00 A.M. (local time at the applicable
Notice Office) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of Eurodollar Loans, it shall have the right to
elect by giving the Administrative Agent written or telephonic notice (in the
case of telephonic notice, promptly confirmed in writing if so requested by the
Administrative Agent) of the Interest Period applicable to such Borrowing, which
Interest Period shall, at the option of the Borrower, be a one, two, three or
six month period. Notwithstanding anything to the contrary contained above:
(i) the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Prime Rate
Loans) and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day, PROVIDED that if any Interest Period
would otherwise expire on a day which is not a Business Day but is a
day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business
Day;
(iv) subject to the foregoing clauses (i) through (iii), (A)
only a one month Interest Period shall be available to be selected
prior to the Syndication Date; and (B) all Loans which constitute
Eurodollar Loans and are outstanding during said period shall have been
incurred or converted into one or more Borrowings, with all such
Borrowings to have an Interest Period which commences and ends on the
same date;
(v) no Interest Period with respect to any Borrowing of Term
Loans may be elected that would extend beyond any date upon which a
Scheduled Repayment is required to be made in respect of such Loans if,
after giving effect to the selection of such Interest Period, the
aggregate principal amount of Term Loans maintained as Eurodollar Loans
with Interest Periods ending after such date would exceed the aggregate
principal amount of Term Loans permitted to be outstanding after such
Scheduled Repayment;
(vi) no Interest Period for any Loan may be selected which
would end after the General Revolving Maturity Date or the Term Loan
Maturity Date, as the case may be, applicable to such Loan; and
(vii) no Interest Period may be elected at any time when a
Default under section 10.1(a) or an Event of Default is then in
existence, UNLESS (x) if such Interest Period relates to Term Loans,
the Required Term Lenders, or (y) if such Interest Period relates to
General Revolving Loans, the Required General Revolving Lenders,
otherwise agree.
(b) If upon the expiration of any Interest Period the Borrower has
failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing to Prime Rate Loans
effective as of the expiration date of such current Interest Period.
2.10. INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender, shall have determined on a reasonable
basis (which determination shall, absent manifest error, be final and conclusive
and binding upon all parties hereto):
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<PAGE> 30
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the
Effective Date affecting the interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the applicable interest rate
on the basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder in an
amount which such Lender deems material with respect to any Eurodollar
Loans (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in
the rate of taxes or similar charges) because of (x) any change since
the Effective Date in any applicable law, governmental rule,
regulation, guideline, order or request (whether or not having the
force of law), or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, guideline, order or request (such as, for example, but not
limited to, a change in official reserve requirements, but, in all
events, excluding reserves includable in the Eurodollar Rate pursuant
to the definition thereof) and/or (y) other circumstances adversely
affecting the interbank Eurodollar market or the position of such
Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has become unlawful by compliance by such Lender in
good faith with any change since the Effective Date in any law,
governmental rule, regulation, guideline or order, or the
interpretation or application thereof, or would conflict with any
thereof not having the force of law but with which such Lender
customarily complies or has become impracticable as a result of a
contingency occurring after the Effective Date which materially
adversely affects the interbank Eurodollar market;
THEN, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on or promptly following such date or time
and (y) within 10 Business Days of the date on which such event no longer exists
give notice (by telephone confirmed in writing) to the Borrower and to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other applicable Lenders).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no longer
be available until such time as the Administrative Agent notifies the Borrower
and the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans which have not
yet been incurred or converted shall be deemed rescinded by the Borrower or, in
the case of a Notice of Borrowing, shall, at the option of the Borrower, be
deemed converted into a Notice of Borrowing for Prime Rate Loans to be made on
the date of Borrowing contained in such Notice of Borrowing, (y) in the case of
clause (ii) above, the Borrower shall pay to such Lender, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender shall
determine) as shall be required to compensate such Lender, for such increased
costs or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Lender, showing the basis for the calculation
thereof, which basis must be reasonable, submitted to the Borrower by such
Lender shall, absent manifest error, be final and conclusive and binding upon
all parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in section 2.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in section 2.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to section 2.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the Borrower was
notified by a Lender pursuant to section 2.10(a)(ii) or (iii), cancel said
Borrowing, convert the related Notice of Borrowing into one requesting a
Borrowing of Prime Rate Loans or require the affected Lender to make its
requested Loan as a Prime Rate Loan, or (ii) if the affected Eurodollar Loan is
then outstanding, upon at least one Business Day's notice to the Administrative
Agent, require the affected Lender to convert each such Eurodollar Loan into a
Prime Rate Loan, PROVIDED that if more than one Lender is affected at any time,
then all affected Lenders must be treated the same pursuant to this section
2.10(b).
(c) If any Lender shall have determined that after the Effective Date,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged by law with the interpretation or administration thereof, or
compliance by such Lender or its parent corporation with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank, or comparable agency, in each case made
25
<PAGE> 31
subsequent to the Effective Date, has or would have the effect of reducing by an
amount reasonably deemed by such Lender to be material the rate of return on
such Lender's or its parent corporation's capital or assets as a consequence of
such Lender's commitments or obligations hereunder to a level below that which
such Lender or its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's or
its parent corporation's policies with respect to capital adequacy), then from
time to time, within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent corporation for
such reduction. Each Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this section 2.10(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth, in
reasonable detail, the basis of the calculation of such additional amounts,
which basis must be reasonable, although the failure to give any such notice
shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this section 2.10(c) upon the subsequent receipt
of such notice.
(d) Notwithstanding anything in this Agreement to the contrary, (i) no
Lender shall be entitled to compensation or payment or reimbursement of other
amounts under section 2.10, 3.5 or 5.5 for any amounts incurred or accruing more
than 120 days prior to the giving of notice to the Borrower of additional costs
or other amounts of the nature described in such sections, and (ii) no Lender
shall demand compensation for any reduction referred to in section 2.10(c) or
payment or reimbursement of other amounts under section 3.5 or 5.5 if it shall
not at the time be the general policy or practice of such Lender to demand such
compensation, payment or reimbursement in similar circumstances under comparable
provisions of other credit agreements.
2.11. BREAKAGE COMPENSATION. The Borrower shall compensate each
applicable Lender, upon its written request (which request shall set forth the
detailed basis for requesting and the method of calculating such compensation),
for all reasonable losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of the liquidation
or reemployment of deposits or other funds required by such Lender to fund its
Eurodollar Loans) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender or the Administrative Agent), (A) a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not rescinded or withdrawn by the
Borrower or deemed rescinded or withdrawn pursuant to section 2.10(a)), or (B) a
Borrowing of Money Market Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing; (ii) if any repayment (including a Scheduled
Repayment), prepayment or conversion of any of its Eurodollar Loans occurs on a
date which is not the last day of an Interest Period applicable thereto; (iii)
if any repayment or prepayment of any of its Money Market Rate Loans occurs on a
date which is not the maturity date thereof; (iv) if any prepayment of any of
its Eurodollar Loans or Money Market Rate Loans is not made on any date
specified in a notice of prepayment given by the Borrower; (v) if such Lender
transfers its Eurodollar Loans pursuant to a request by the Borrower under
section 2.12(b) hereof; or (vi) as a consequence of (x) any other default by the
Borrower to repay its Eurodollar Loans or Money Market Rate Loans when required
by the terms of this Agreement or (y) an election made pursuant to section
2.10(b).
2.12. CHANGE OF LENDING OFFICE; REPLACEMENT OF LENDERS. (a) Each Lender
agrees that, upon the occurrence of any event giving rise to the operation of
section 2.10(a)(ii) or (iii), 2.10(c), 3.5 or 5.5 with respect to such Lender,
it will, if requested by the Borrower, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate another Applicable
Lending Office for any Loans or Commitment affected by such event, PROVIDED that
such designation is made on such terms that such Lender and its Applicable
Lending Office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to the operation of
any such section.
(b) If any Lender requests any compensation, reimbursement or other
payment under section 2.10(a)(ii) or (iii), 2.10(c) or 3.5 with respect to such
Lender, or if the Borrower is required to pay any additional amount to any
Lender or governmental authority pursuant to section 5.5, or if any Lender is a
Defaulting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with the restrictions
contained in section 12.4(b)), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); PROVIDED that (i)
the Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts,
including any breakage compensation under section 2.11 hereof), and (iii) in the
case of any such assignment resulting from a claim for compensation,
reimbursement or other payments required to be made under section
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<PAGE> 32
2.10(a)(ii) or (iii), 2.10(c) or 3.5 with respect to such Lender, or resulting
from any required payments to any Lender or governmental authority pursuant to
section 5.5, such assignment will result in a reduction in such compensation,
reimbursement or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
(c) Nothing in this section 2.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in section 2.10,
3.5 or 5.5.
SECTION 3. LETTERS OF CREDIT.
3.1. LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Closing Date and prior to the
date that is 15 Business Days prior to the General Revolving Maturity Date to
issue, for the account of the Borrower or any of its Subsidiaries and in support
of (i) trade obligations of the Borrower and its Subsidiaries incurred in the
ordinary course of business, and/or (ii) worker compensation, liability
insurance, releases of contract retention obligations, contract performance
guarantee requirements and other bonding obligations of the Borrower or any such
Subsidiary incurred in the ordinary course of its business, and such other
standby obligations of the Borrower and its Subsidiaries that are acceptable to
the Letter of Credit Issuer, and subject to and upon the terms and conditions
herein set forth, such Letter of Credit Issuer agrees to issue from time to
time, irrevocable documentary or standby letters of credit denominated in
Dollars in such form as may be approved by such Letter of Credit Issuer and the
Administrative Agent (each such letter of credit (and each Existing Letter of
Credit described in section 3.1(d)), a "LETTER OF CREDIT" and collectively, the
"LETTERS OF CREDIT"). Letters of Credit issued for purposes referred to in
clause (i) above are sometimes referred to as "DOCUMENTARY LETTERS OF CREDIT",
and Letters of Credit issued for purposes referred to in clause (ii) above are
sometimes referred to as "STANDBY LETTERS OF CREDIT".
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed either (x) $10,000,000, or (y) when
added to the aggregate principal amount of all General Revolving Loans and Swing
Line Revolving Loans then outstanding, an amount equal to the Total General
Revolving Commitment at such time; (ii) no individual Letter of Credit (other
than any Existing Letter of Credit) shall be issued which has an initial Stated
Amount less than $100,000 unless such lesser Stated Amount is acceptable to the
Letter of Credit Issuer; and (iii) each Letter of Credit shall have an expiry
date (including any renewal periods) occurring not later than the earlier of (A)
one year from the date of issuance thereof, unless a longer period is approved
by the relevant Letter of Credit Issuer and the Required General Revolving
Lenders, and (B) 15 Business Days prior to the General Revolving Maturity Date,
in each case on terms acceptable to the Administrative Agent and the relevant
Letter of Credit Issuer.
(c) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless either (i) such Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender's or Lenders' General Revolving Facility Percentage of the
Letter of Credit Outstandings; or (ii) the issuance of such Letter of Credit,
taking into account the potential failure of the Defaulting Lender or Lenders to
risk participate therein, will not cause the Letter of Credit Issuer to incur
aggregate credit exposure hereunder with respect to General Revolving Loans and
Letter of Credit Outstandings in excess of its General Revolving Commitment, and
the Borrower has undertaken, for the benefit of such Letter of Credit Issuer,
pursuant to an instrument satisfactory in form and substance to such Letter of
Credit Issuer, not to thereafter incur Loans or Letter of Credit Outstandings
hereunder which would cause the Letter of Credit Issuer to incur aggregate
credit exposure hereunder with respect to General Revolving Loans and Letter of
Credit Outstandings in excess of its General Revolving Commitment.
(d) Annex VI hereto contains a description of all letters of credit
outstanding on, and to continue in effect after, the Closing Date. Each such
letter of credit issued by a bank that is or becomes a Lender under this
Agreement on the Effective Date (each, an "EXISTING LETTER OF CREDIT") shall
constitute a "Letter of Credit" for all purposes of this Agreement, issued, for
purposes of section 3.4(a), on the Closing Date, and the Borrower, the
Administrative Agent and the applicable
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Lenders hereby agree that, from and after such date, the terms of this Agreement
shall apply to such Letters of Credit, superseding any other agreement
theretofore applicable to them to the extent inconsistent with the terms hereof.
3.2. LETTER OF CREDIT REQUESTS: NOTICES OF ISSUANCE. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and the Letter of Credit Issuer written or telephonic
notice (in the case of telephonic notice, promptly confirmed in writing if so
requested by the Administrative Agent) which, if in the form of written notice
shall be substantially in the form of Exhibit B-3, or transmit by electronic
communication (if arrangements for doing so have been approved by the Letter of
Credit Issuer), prior to 11:00 A.M. (local time at its Notice Office) at least
three Business Days (or such shorter period as may be acceptable to the relevant
Letter of Credit Issuer) prior to the proposed date of issuance (which shall be
a Business Day) (each a "LETTER OF CREDIT REQUEST"), which Letter of Credit
Request shall include such supporting documents that such Letter of Credit
Issuer customarily requires in connection therewith (including, in the case of a
Letter of Credit for an account party other than the Borrower, an application
for, and if applicable a reimbursement agreement with respect to, such Letter of
Credit). Any such documents executed in connection with the issuance of a Letter
of Credit, including the Letter of Credit itself, are herein referred to as
"LETTER OF CREDIT DOCUMENTS". In the event of any inconsistency between any of
the terms or provisions of any Letter of Credit Document and the terms and
provisions of this Agreement respecting Letters of Credit, the terms and
provisions of this Agreement shall control. The Administrative Agent shall
promptly notify each Lender of each Letter of Credit Request.
(b) Each Letter of Credit Issuer shall, on the date of each issuance of
a Letter of Credit by it, give the Administrative Agent, each applicable Lender
and the Borrower written notice of the issuance of such Letter of Credit,
accompanied by a copy to the Administrative Agent of the Letter of Credit or
Letters of Credit issued by it. Each Letter of Credit Issuer shall provide to
the Administrative Agent a quarterly (or monthly if requested by any applicable
Lender) summary describing each Letter of Credit issued by such Letter of Credit
Issuer and then outstanding and an identification for the relevant period of the
daily aggregate Letter of Credit Outstandings represented by Letters of Credit
issued by such Letter of Credit Issuer.
3.3. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse (or cause any Subsidiary for whose account a Letter
of Credit was issued to reimburse) each Letter of Credit Issuer, by making
payment directly to such Letter of Credit Issuer in immediately available funds
at the payment office of such Letter of Credit Issuer, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "UNPAID DRAWING"):
(x) immediately after the time and on the same Business Day on which such Letter
of Credit Issuer notifies the Borrower (or any such Subsidiary for whose account
such Letter of Credit was issued) of such payment or disbursement (which notice
to the Borrower (or such Subsidiary) shall be delivered reasonably promptly
after any such payment or disbursement), if such notice is given before 11:00 A.
M. (local time at the payment office of the Letter of Credit Issuer), or (y) if
such notice is given at a later time on any Business Day, such reimbursement
payment to the Letter of Credit Issuer shall be made not later than one Business
Day following the date on which such Letter of Credit Issuer so notifies the
Borrower (or any such Subsidiary for whose account such Letter of Credit was
issued). Any such reimbursement payment by the Borrower shall be made in Dollars
and, if made later than 11:00 A.M. (local time at the payment office of the
Letter of Credit Issuer) on the date when due, such reimbursement payment by the
Borrower shall be accompanied by the payment of interest on the amount so paid
or disbursed by such Letter of Credit Issuer, from and including the date paid
or disbursed to but not including the date such Letter of Credit Issuer is
reimbursed therefor, at a rate per annum which shall be the rate then applicable
to General Revolving Loans which are Prime Rate Loans (plus an additional 3% per
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), any such interest also to be payable on demand.
(b) The Borrower's obligation under this section 3.3 to reimburse, or
cause a Subsidiary to reimburse, each Letter of Credit Issuer with respect to
Unpaid Drawings (including, in each case, interest thereon) shall be absolute
and unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Borrower may have or have
had against such Letter of Credit Issuer, the Administrative Agent, any other
Letter of Credit Issuer or any Lender, including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing, PROVIDED,
HOWEVER that the Borrower shall not be obligated to reimburse, or cause a
Subsidiary to reimburse, a Letter of Credit Issuer for any wrongful payment made
by such Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Letter of Credit Issuer.
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3.4. LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the issuance
by a Letter of Credit Issuer of any Letter of Credit (and on the Closing Date
with respect to any Existing Letter of Credit), such Letter of Credit Issuer
shall be deemed to have sold and transferred to each Lender with a General
Revolving Commitment, and each such Lender (each a "PARTICIPANT") shall be
deemed irrevocably and unconditionally to have purchased and received from such
Letter of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's General Revolving Facility
Percentage, in such Letter of Credit, each substitute letter of credit, each
drawing made thereunder, the obligations of the Borrower under this Agreement
with respect thereto (although Letter of Credit Fees shall be payable directly
to the Administrative Agent for the account of the Lenders as provided in
section 4.1(b) and the Participants shall have no right to receive any portion
of any fees of the nature contemplated by section 4.1(c)), the obligations of
any Subsidiary of the Borrower under any Letter of Credit Documents pertaining
thereto, and any security for, or guaranty pertaining to, any of the foregoing.
Upon any change in the General Revolving Commitments of the Lenders pursuant to
section 12.4(b), it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this section 3.4 to reflect the new General
Revolving Facility Percentages of the assigning and assignee Lenders.
(b) In determining whether to pay under any Letter of Credit, a Letter
of Credit Issuer shall not have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by a Letter of Credit Issuer under or in connection with any Letter
of Credit if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Letter of Credit Issuer any resulting
liability.
(c) In the event that a Letter of Credit Issuer makes any payment under
any Letter of Credit and the Borrower shall not have reimbursed (or caused any
applicable Subsidiary to reimburse) such amount in full to such Letter of Credit
Issuer pursuant to section 3.3(a), such Letter of Credit Issuer shall promptly
notify the Administrative Agent, and the Administrative Agent shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's General Revolving Facility
Percentage of such payment in U.S. Dollars and in same day funds, PROVIDED,
HOWEVER, that no Participant shall be obligated to pay to the Administrative
Agent its General Revolving Facility Percentage of such unreimbursed amount for
any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of such Letter of Credit Issuer. If the Administrative
Agent so notifies any Participant required to fund a payment under a Letter of
Credit prior to 11:00 A.M. (local time at its Notice Office) on any Business
Day, such Participant shall make available to the Administrative Agent for the
account of the relevant Letter of Credit Issuer such Participant's General
Revolving Facility Percentage of the amount of such payment on such Business Day
in same day funds. If and to the extent such Participant shall not have so made
its General Revolving Facility Percentage of the amount of such payment
available to the Administrative Agent for the account of the relevant Letter of
Credit Issuer, such Participant agrees to pay to the Administrative Agent for
the account of such Letter of Credit Issuer, forthwith on demand such amount,
together with interest thereon, for each day from such date until the date such
amount is paid to the Administrative Agent for the account of such Letter of
Credit Issuer at the Federal Funds Effective Rate. The failure of any
Participant to make available to the Administrative Agent for the account of the
relevant Letter of Credit Issuer its General Revolving Facility Percentage of
any payment under any Letter of Credit shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of such Letter of Credit Issuer its General Revolving Facility
Percentage of any payment under any Letter of Credit on the date required, as
specified above, but no Participant shall be responsible for the failure of any
other Participant to make available to the Administrative Agent for the account
of such Letter of Credit Issuer such other Participant's General Revolving
Facility Percentage of any such payment.
(d) Whenever a Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to section 3.4(c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its General Revolving Facility Percentage thereof, in
U.S. dollars and in same day funds, an amount equal to such Participant's
General Revolving Facility Percentage of the principal amount thereof and
interest thereon accruing after the purchase of the respective participations,
as and to the extent so received.
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(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of each Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, set-off defense or other
right which the Borrower (or any Subsidiary) may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any person for whom any such transferee may be
acting), the Administrative Agent, any Letter of Credit Issuer, any
Lender, or other person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
(or any Subsidiary) and the beneficiary named in any such Letter of
Credit), other than any claim which the Borrower (or any Subsidiary
which is the account party with respect to a Letter of Credit) may have
against any applicable Letter of Credit Issuer for gross negligence or
wilful misconduct of such Letter of Credit Issuer in making payment
under any applicable Letter of Credit;
(iii) any draft, certificate or other document presented under
the 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;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents: or
(v) the occurrence of any Default or Event of Default.
(f) To the extent the Letter of Credit Issuer is not indemnified by the
Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective General Revolving Facility
Percentages, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by the Letter of Credit Issuer in performing its respective duties in
any way related to or arising out of its issuance of Letters of Credit, PROVIDED
that no Participants shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements resulting from the Letter of Credit Issuer's gross
negligence or willful misconduct.
3.5. INCREASED COSTS. If after the Effective Date, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Letter of Credit Issuer or any Lender with any
request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency (in each case made subsequent to
the Effective Date) shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against Letters of
Credit issued by such Letter of Credit Issuer or such Lender's participation
therein, or (ii) shall impose on such Letter of Credit Issuer or any Lender any
other conditions affecting this Agreement, any Letter of Credit or such Lender's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Lender of issuing, maintaining or
participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Lender hereunder
(other than any increased cost or reduction in the amount received or receivable
resulting from the imposition of or a change in the rate of taxes or similar
charges), then, upon demand to the Borrower by such Letter of Credit Issuer or
such Lender (a copy of which notice shall be sent by such Letter of Credit
Issuer or such Lender to the Administrative Agent), the Borrower shall pay to
such Letter of Credit Issuer or such Lender such additional amount or amounts as
will compensate any such Letter of Credit Issuer or such Lender for such
increased cost or reduction. A certificate submitted to the Borrower by any
Letter of Credit Issuer or any Lender, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Lender to the
Administrative Agent), setting forth, in reasonable detail, the basis for the
determination of such additional amount or amounts necessary to compensate any
Letter of Credit Issuer or such Lender as aforesaid shall be conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this section 3.5. Reference
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is hereby made to the provisions of section 2.10(d) for certain limitations upon
the rights of a Letter of Credit Issuer or Lender under this section.
3.6. GUARANTY OF SUBSIDIARY LETTER OF CREDIT OBLIGATIONS. (a) The
Borrower hereby unconditionally guarantees, for the benefit of the
Administrative Agent and the Lenders, the full and punctual payment of the
Obligations of each Subsidiary under each Letter of Credit Document to which
such Subsidiary is now or hereafter becomes a party. Upon failure by any such
Subsidiary to pay punctually any such amount, the Borrower shall forthwith on
demand by the Administrative Agent pay the amount not so paid at the place and
in the currency and otherwise in the manner specified in this Agreement or any
applicable Letter of Credit Document.
(b) As a separate, additional and continuing obligation, the Borrower
unconditionally and irrevocably undertakes and agrees, for the benefit of the
Administrative Agent and the Lenders, that, should any amounts not be
recoverable from the Borrower under section 3.6(a) for any reason whatsoever
(including, without limitation, by reason of any provision of any Credit
Document or any other agreement or instrument executed in connection therewith
being or becoming void, unenforceable, or otherwise invalid under any applicable
law) then, notwithstanding any notice or knowledge thereof by any Lender, the
Administrative Agent, any of their respective Affiliates, or any other person,
at any time, the Borrower as sole, original and independent obligor, upon demand
by the Administrative Agent, will make payment to the Administrative Agent, for
the account of the Lenders and the Administrative Agent, of all such obligations
not so recoverable by way of full indemnity, in such currency and otherwise in
such manner as is provided in the Credit Documents.
(c) The obligations of the Borrower under this section shall be
unconditional and absolute and, without limiting the generality of the foregoing
shall not be released, discharged or otherwise affected by the occurrence, one
or more times, of any of the following:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect to any obligation of any Subsidiary under any Letter
of Credit Document, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to this
Agreement, any Note or any other Credit Document;
(iii) any release, non-perfection or invalidity of any direct
or indirect security for any obligation of the Borrower under this
Agreement, any Note or any other Credit Document or of any Subsidiary
under any Letter of Credit Document;
(iv) any change in the corporate existence, structure or
ownership of any Subsidiary or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Subsidiary or
its assets or any resulting release or discharge of any obligation of
any Subsidiary contained in any Letter of Credit Document;
(v) the existence of any claim, set-off or other rights which
the Borrower may have at any time against any Subsidiary, the
Administrative Agent, any Lender or any other person, whether in
connection herewith or any unrelated transactions;
(vi) any invalidity or unenforceability relating to or against
any Subsidiary for any reason of any Letter of Credit Document, or any
provision of applicable law or regulation purporting to prohibit the
payment by any Subsidiary of any Obligations in respect of any Letter
of Credit; or
(vii) any other act or omission to act or delay of any kind by
any Subsidiary, the Administrative Agent, any Lender or any other
person or any other circumstance whatsoever which might, but for the
provisions of this section, constitute a legal or equitable discharge
of the Borrower's obligations under this section.
(d) The Borrower's obligations under this section shall remain in full
force and effect until the Commitments shall have terminated and the principal
of and interest on the Notes and all other amounts payable by the Borrower under
the Credit Documents and by any Subsidiary under the Letter of Credit Documents
shall have been paid in full. If at any time any payment of any of the
Obligations of any Subsidiary in respect of any Letter of Credit Documents is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of such Subsidiary, the Borrower's
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obligations under this section with respect to such payment shall be reinstated
at such time as though such payment had been due but not made at such time.
(e) The Borrower irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person against any
Subsidiary or any other person, or against any collateral or guaranty of any
other person.
(f) The Borrower hereby subordinates all rights, whether arising by
operation of law or otherwise, which it may have upon making any payment under
this section to be subrogated to the rights of the payee against any Subsidiary
with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by any Subsidiary in respect thereof, to the indefeasible payment in
full of all of the Obligations.
(g) In the event that acceleration of the time for payment of any
amount payable by any Subsidiary under any Letter of Credit Document is stayed
upon insolvency, bankruptcy or reorganization of such Subsidiary, all such
amounts otherwise subject to acceleration under the terms of any applicable
Letter of Credit Document shall nonetheless be payable by the Borrower under
this section forthwith on demand by the Administrative Agent.
SECTION 4. FEES; COMMITMENTS.
4.1. FEES. (a) (i) The Borrower agrees to pay to the Administrative
Agent a Facility Fee ("FACILITY FEE") for the account of each Non-Defaulting
Lender which has a General Revolving Commitment for the period from and
including the Effective Date to but not including the date the Total General
Revolving Commitment has been terminated, which, for any such Lender, shall be
computed on the daily amount of the General Revolving Commitment of such Lender,
whether used or unused, at the Applicable Facility Fee Rate, payable quarterly
in arrears on the last Business Day of each March, June, September and December
and on the Maturity Date, commencing with the last Business Day of June 1998 for
the period from the Effective Date to such date.
(ii) As used herein, the term "APPLICABLE FACILITY FEE RATE", as
applied to any Loan which is a Eurodollar Loan, means the particular rate per
annum determined by the Administrative Agent in accordance with the Pricing Grid
Table which appears in section 2.8(h), based on the Borrower's ratio of
Consolidated Net Debt to Consolidated EBITDA and such Pricing Grid Table, and
the following provisions:
(A) Initially, until changed hereunder in accordance with the
following provisions, the Applicable Facility Fee Rate will be 25 basis
points per annum.
(B) Commencing with the fiscal quarter of the Borrower ended
on or nearest to June 30, 1998, and continuing with each fiscal quarter
thereafter, the Administrative Agent will determine the Applicable
Facility Fee Rate in accordance with the Pricing Grid Table, based on
the Borrower's ratio of (x) Consolidated Net Debt as of the end of the
fiscal quarter, to (y) Consolidated EBITDA for the Testing Period ended
on the last day of the fiscal quarter, and identified in such Table.
Changes in the Applicable Facility Fee Rate based upon changes in such
ratio shall become effective on the first day of the month following
the receipt by the Administrative Agent pursuant to section 8.1(a) or
(b) of the financial statements of the Borrower, accompanied by the
certificate and calculations referred to in section 8.1(c),
demonstrating the computation of such ratio, based upon the ratio in
effect at the end of the applicable period covered (in whole or in
part) by such financial statements.
(C) Notwithstanding the above provisions, during any period
when (1) the Borrower has failed to timely deliver its consolidated
financial statements referred to in section 8.1(a) or (b), accompanied
by the certificate and calculations referred to in section 8.1(c), (2)
a Default under section 10.1(a) has occurred and is continuing, or (3)
an Event of Default has occurred and is continuing, the Applicable
Facility Fee Rate shall be the highest rate per annum indicated
therefor in the Pricing Grid Table, regardless of the Borrower's ratio
of Consolidated Net Debt to Consolidated EBITDA at such time.
(D) Any changes in the Applicable Facility Fee Rate shall be
determined by the Administrative Agent in accordance with the above
provisions and the Administrative Agent will promptly provide notice of
such
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determinations to the Borrower and the Lenders. Any such determination
by the Administrative Agent pursuant to this section 4.1(a) shall be
conclusive and binding absent manifest error.
(b) The Borrower agrees to pay to the Administrative Agent, for the
account of each Non-Defaulting Lender which has a General Revolving Commitment,
PRO RATA on the basis of its General Revolving Facility Percentage, a fee in
respect of each Letter of Credit (the "LETTER OF CREDIT FEE"), computed for each
day at the rate per annum equal to the Applicable Eurodollar Margin then in
effect, on the Stated Amount of all letters of Credit outstanding on such day.
Accrued Letter of Credit Fees shall be payable on the last Business Day of each
March, June, September and on the date on which the Total General Revolving
Commitment is terminated. Notwithstanding the above provisions, if a Default
under section 10.1(a) or Event of Default is in existence, the Borrower will pay
to the Administrative Agent, on demand, for the account of each Non-Defaulting
Lender which has a General Revolving Commitment, PRO RATA on the basis of its
General Revolving Facility Percentage, an additional Letter of Credit Fee for
each outstanding Letter of Credit, computed at 2% per annum above the then
prevailing rate for the Letter of Credit Fee on the Stated Amount of such
outstanding Letter of Credit for the period such Default or Event of Default is
in existence.
(c) The Borrower agrees to pay directly to each Letter of Credit Issuer
upon each issuance of, drawing under, and/or amendment, extension, renewal or
transfer of, a Letter of Credit issued by it such amount as shall at the time of
such issuance, drawing, amendment, extension, renewal or transfer be the
administrative or processing charge which such Letter of Credit Issuer is
customarily charging for issuances of, drawings under or amendments, extensions,
renewals or transfers of, letters of credit issued by it.
(d) The Borrower shall pay to the Administrative Agent on the Effective
Date and thereafter for its own account and/or for distribution to the Lenders
such fees as heretofore agreed by the Borrower and the Administrative Agent.
(e) All computations of Fees shall be made in accordance with section
12.7(b).
4.2. VOLUNTARY TERMINATION/REDUCTION OF COMMITMENTS. Upon at least
three Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the affected Lenders),
the Borrower shall have the right, without premium or penalty, to:
(a) terminate the Total Commitment, PROVIDED that (i) all
outstanding Loans are contemporaneously prepaid in accordance with
section 5.1, and (ii) either (A) no Letters of Credit remain
outstanding, or (B) the Borrower shall contemporaneously either (x)
cause all outstanding Letters of Credit to be surrendered for
cancellation (any such Letters of Credit to be replaced by letters of
credit issued by other financial institutions acceptable to the
Required General Revolving Lenders), or (y) the Borrower shall pay to
the Administrative Agent an amount in cash and/or Cash Equivalents
equal to 100% of the Letter of Credit Outstandings and the
Administrative Agent shall hold such payment as security for the
reimbursement obligations of the Borrower hereunder in respect of
Letters of Credit pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower (which shall permit certain
investments in Cash Equivalents satisfactory to the Administrative
Agent and the Borrower until the proceeds are applied to the secured
obligations);
(b) terminate the Total Term Loan Commitment, PROVIDED that
all outstanding Term Loans are contemporaneously prepaid in accordance
with section 5.1;
(c) terminate the Swing Line Revolving Commitment, PROVIDED
that all outstanding Swing Line Revolving Loans are contemporaneously
prepaid in accordance with section 5.1;
(d) partially and permanently reduce the Unutilized Total
General Revolving Commitment, PROVIDED that (i) any such reduction
shall apply to proportionately and permanently reduce the General
Revolving Commitment of each of the Lenders; (ii) any partial reduction
of the Unutilized Total General Revolving Commitment pursuant to this
section 4.2(b) shall be in the amount of at least $3,000,000 (or, if
greater, in integral multiples of $500,000); and (iii) after giving
effect to any such partial reduction of the Unutilized Total General
Revolving Commitment, the Total General Revolving Commitment then in
effect shall exceed (x) the Swing Line
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Revolving Commitment then in effect by at least $10,000,000, and (y)
the Total Term Loan Commitment then in effect by at least $10,000,000;
(e) after the incurrence of Term Loans on the Closing Date,
partially and permanently reduce the Total Term Loan Commitment only by
making Scheduled Repayments of Term Loans pursuant to section 5.2, and
prepayments of Term Loans pursuant to sections 5.1 and 5.3; and/or
(f) partially and permanently reduce the Unutilized Swing Line
Revolving Commitment, PROVIDED that any partial reduction of the
Unutilized Swing Line Revolving Commitment pursuant to this section
4.2(b) shall be in the amount of at least $1,000,000 (or, if greater,
in integral multiples of $1,000,000).
The Borrower may not reduce the Total Term Loan Commitment, in whole or in part,
prior to the Borrowing of Term Loans on the Closing Date.
4.3. MANDATORY TERMINATION/ADJUSTMENTS OF COMMITMENTS, ETC. (a) The
Total Commitment (and the Commitment of each Lender) shall terminate on June 15,
1998, unless the Closing Date has occurred on or prior to such date.
(b) The Total Commitment shall terminate (and the Commitment of each
Lender shall terminate) on the date on which a Change of Control occurs.
(c) The Total Term Loan Commitment shall terminate (and the Term Loan
Commitment, if any, of each Lender shall terminate) on the Term Loan Maturity
Date. The Total General Revolving Commitment (and the General Revolving
Commitment, if any, of each Lender) and the Swing Line Revolving Commitment
shall each terminate on the General Revolving Maturity Date.
(d) The Total Term Loan Commitment shall be permanently reduced,
without premium or penalty, at the time and in the principal amount of (i) each
Scheduled Repayment which is made pursuant to section 5.2, and (ii) each
prepayment of principal which is made pursuant to section 5.1 or 5.3.
4.4. EXTENSION OF GENERAL REVOLVING MATURITY DATE. At any time after
January 1, 1999, and during the 30 day period following delivery by the Borrower
pursuant to section 8.1(a) of its consolidated financial statements for its
fiscal year most recently ended, and annually thereafter during the 30 day
period following delivery by the Borrower of its consolidated financial
statements pursuant to section 8.1(a), the Borrower may request the
Administrative Agent to determine if all of the Lenders with General Revolving
Commitments are then willing to extend the General Revolving Maturity Date for a
single additional year. If the Borrower so requests, the Administrative Agent
will so advise such Lenders. If all of such Lenders in their sole discretion are
all willing to so extend the General Revolving Maturity Date, after taking into
account such considerations as any such Lender may deem relevant, the Borrower,
the Administrative Agent and all of such Lenders shall execute and deliver a
definitive written instrument so extending the General Revolving Maturity Date.
No such extension of the General Revolving Maturity Date shall be valid or
effective for any purpose unless such definitive written instrument is so signed
and delivered within 60 days following the giving by the Administrative Agent of
notice to the Lenders with General Revolving Commitments that the Borrower has
requested such an extension.
SECTION 5. PAYMENTS.
5.1. VOLUNTARY PREPAYMENTS. The Borrower shall have the right to prepay
any of its Loans, in whole or in part, without premium or penalty, from time to
time on the following terms and conditions:
(a) the Borrower shall give the Administrative Agent at the
Notice Office written or telephonic notice (in the case of telephonic
notice, promptly confirmed in writing if so requested by the
Administrative Agent) of its intent to prepay the Loans, the amount of
such prepayment and (in the case of Eurodollar Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be received by
the Administrative Agent by
(x) 11:00 A.M. (local time at the Notice Office)
three Business Days prior to the date of such prepayment, in
the case of any prepayment of Eurodollar Loans, or
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(y) 12:00 noon (local time at the Notice Office) on
the date of such prepayment, in the case of any prepayment of
Prime Rate Loans or Money Market Rate Loans,
and which notice shall promptly be transmitted by the Administrative
Agent to each of the affected Lenders;
(b) in the case of prepayment of any Borrowings under the
General Revolving Facility, each partial prepayment of any such
Borrowing shall be in an aggregate principal of at least $100,000 or an
integral multiple of $25,000 in excess thereof, in the case of Prime
Rate Loans, and at least $3,000,000 or an integral multiple of $500,000
in excess thereof, in the case of Eurodollar Loans;
(c) in the case of prepayment of any Borrowings under the Term
Loan Facility, (i) such prepayment shall be applied to reduce the
Scheduled Repayments in inverse order of maturity, and (ii) each
partial prepayment of any such Borrowing shall be in an aggregate
principal of at least $100,000 or an integral multiple of $25,000 in
excess thereof, in the case of Prime Rate Loans, and at least
$3,000,000 or an integral multiple of $500,000 in excess thereof, in
the case of Eurodollar Loans;
(d) in the case of prepayment of any Borrowings under the
Swing Line Revolving Facility, each partial prepayment of any such
Borrowing shall be in an aggregate principal of at least $100,000 or an
integral multiple of $25,000 in excess thereof;
(e) no partial prepayment of any Loans made pursuant to a
Borrowing shall reduce the aggregate principal amount of such Loans
outstanding pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto;
(f) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied PRO RATA among such Loans; and
(g) each prepayment of Eurodollar Loans or Money Market Rate
Loans pursuant to this section 5.1 on any date other than the last day
of the Interest Period applicable thereto, in the case of Eurodollar
Loans, or the maturity date thereof, in the case of Money Market Rate
Loans, shall be accompanied by any amounts payable in respect thereof
under section 2.11.
5.2. SCHEDULED REPAYMENTS OF TERM LOANS. On each March 31, June 30,
September 30 and December 31, commencing September 30, 1998, the Borrower shall
be required to, and shall, repay the principal amount of its Term Loans in the
amount of $1,250,000, EXCEPT that the payment due on March 31, 2003 (the "TERM
LOAN MATURITY DATE") shall be in the amount of the entire remaining principal
amount of the outstanding Term Loans (each such repayment, as the same may be
reduced pursuant to section 5.1(c), a "SCHEDULED REPAYMENT"). Each Scheduled
Repayment shall be accompanied by interest accrued on the principal amount
repaid to the date of repayment, and shall be applied PRO RATA among the
outstanding Term Loans.
5.3. MANDATORY PREPAYMENTS. The Loans shall be subject to mandatory
prepayment in accordance with the following provisions:
(a) IF OUTSTANDING GENERAL REVOLVING LOANS AND LETTER OF
CREDIT OUTSTANDINGS EXCEED TOTAL GENERAL REVOLVING COMMITMENT. If on
any date (after giving effect to any other payments on such date) the
sum of (i) the aggregate outstanding principal amount of General
Revolving Loans PLUS (ii) the aggregate amount of Letter of Credit
Outstandings, exceeds the Total General Revolving Commitment as then in
effect, the Borrower shall prepay on such date that principal amount of
General Revolving Loans and, after General Revolving Loans have been
paid in full, Unpaid Drawings, in an aggregate amount at least equal to
such excess and conforming in the case of partial prepayments of
General Revolving Loans to the requirements as to the amounts of
partial prepayments of General Revolving Loans which are contained in
section 5.1. If, after giving effect to the prepayment of General
Revolving Loans and Unpaid Drawings, the aggregate amount of Letter of
Credit Outstandings exceeds the Total General Revolving Commitment as
then in effect, the Borrower shall pay to the Administrative Agent an
amount in cash and/or Cash Equivalents equal to such excess and the
Administrative
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Agent shall hold such payment as security for the reimbursement
obligations of the Borrower hereunder in respect of Letters of Credit
pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Administrative Agent and the
Borrower (which shall permit certain investments in Cash Equivalents
satisfactory to the Administrative Agent and the Borrower until the
proceeds are applied to the secured obligations).
(b) IF OUTSTANDING SWING LINE REVOLVING LOANS EXCEED
UNUTILIZED TOTAL GENERAL REVOLVING COMMITMENT. If on any date (after
giving effect to any other payments on such date) the aggregate
outstanding principal amount of Swing Line Revolving Loans exceeds the
Unutilized Total General Revolving Commitment as then in effect, the
Borrower shall prepay on such date Swing Line Revolving Loans in an
aggregate amount at least equal to such excess and conforming in the
case of partial prepayments of Swing Line Revolving Loans to the
requirements as to the amounts of partial prepayments of Swing Line
Revolving Loans which are contained in section 5.1.
(c) IF OUTSTANDING SWING LINE REVOLVING LOANS EXCEED SWING
LINE REVOLVING COMMITMENT. If on any date (after giving effect to any
other payments on such date) the aggregate outstanding principal amount
of Swing Line Revolving Loans exceeds the Swing Line Revolving
Commitment at such time, the Borrower shall prepay on such date Swing
Line Revolving Loans in an aggregate amount at least equal to such
excess and conforming in the case of partial prepayments of Swing Line
Revolving Loans to the requirements as to the amounts of partial
prepayments of Swing Line Revolving Loans which are contained in
section 5.1.
(d) CHANGE OF CONTROL. On the date of which a Change of
Control occurs, notwithstanding anything to the contrary contained in
this Agreement, no further Borrowings shall be made and the then
outstanding principal amount of all Loans, if any, shall become due and
payable and shall be prepaid in full, and the Borrower shall
contemporaneously either (i) cause all outstanding Letters of Credit to
be surrendered for cancellation (any such Letters of Credit to be
replaced by letters of credit issued by other financial institutions
acceptable to the Required Lenders), or (ii) the Borrower shall pay to
the Administrative Agent an amount in cash and/or Cash Equivalents
equal to 100% of the Letter of Credit Outstandings and the
Administrative Agent shall hold such payment as security for the
reimbursement obligations of the Borrower hereunder in respect of
Letters of Credit pursuant to a cash collateral agreement to be entered
into in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower (which shall permit certain
investments in Cash Equivalents satisfactory to the Administrative
Agent and the Borrower until the proceeds are applied to the secured
obligations).
(e) PARTICULAR LOANS TO BE PREPAID. With respect to each
repayment or prepayment of Loans required by this section 5.3, the
Borrower shall designate the Types of Loans which are to be prepaid and
the specific Borrowing(s) pursuant to which such repayment or
prepayment is to be made, PROVIDED that (i) the Borrower shall first so
designate all Loans that are Prime Rate Loans and Eurodollar Loans with
Interest Periods ending on the date of repayment or prepayment prior to
designating any other Eurodollar Loans for repayment or prepayment,
(ii) if the outstanding principal amount of Eurodollar Loans made
pursuant to a Borrowing is reduced below the applicable Minimum
Borrowing Amount as a result of any such repayment or prepayment, then
all the Loans outstanding pursuant to such Borrowing shall be converted
into Prime Rate Loans, and (iii) each repayment and prepayment of any
Loans made pursuant to a Borrowing shall be applied PRO RATA among such
Loans. In the absence of a designation by the Borrower as described in
the preceding sentence, the Administrative Agent shall, subject to the
above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under section 2.11. Any
repayment or prepayment of Eurodollar Loans or Money Market Rate Loans
pursuant to this section 5.3 shall in all events be accompanied by such
compensation as is required by section 2.11.
5.4. METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its PRO RATA share) account of
the Lenders entitled thereto, not later than 11:00 A.M. (local time at the
Payment Office) on the date when due and shall be made in immediately available
funds and in lawful money of the United States of America at the Payment Office,
it being understood that written notice by the Borrower to the Administrative
Agent to make a payment from the funds in the Borrower's account at the Payment
Office shall constitute the making of such payment to the extent of such funds
held in such account. Any payments under this Agreement which are made later
than 11:00 A.M. (local time at the Payment Office) shall be deemed
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to have been made on the next succeeding Business Day. Whenever any payment to
be made hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
and, with respect to payments of principal, interest shall be payable during
such extension at the applicable rate in effect immediately prior to such
extension.
5.5. NET PAYMENTS. (a) All payments made by the Borrower hereunder,
under any Note or any other Credit Document, will be made without setoff,
counterclaim or other defense. Except as provided for in section 5.5(b), all
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax, imposed on or measured by the net income or
net profits of a Lender pursuant to the laws of the jurisdiction under which
such Lender is organized or the jurisdiction in which the principal office or
Applicable Lending Office of such Lender is located, or any subdivision thereof
or therein) and all interest, penalties or similar liabilities with respect to
such non excluded taxes, levies imposts, duties, fees, assessments or other
charges (all such nonexcluded taxes levies, imposts, duties, fees assessments or
other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes and
such additional amounts as may be necessary so that every payment by it of all
amounts due hereunder, under any Note or under any other Credit Document, after
withholding or deduction for or on account of any Taxes will not be less than
the amount provided for herein or in such Note or in such other Credit Document.
If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the Borrower agrees to reimburse each Lender, upon the written request
of such Lender for taxes imposed on or measured by the net income or profits of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or Applicable Lending Office of such
Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which the principal office or Applicable
Lending Office of such Lender is located and for any withholding of income or
similar taxes imposed by the United States of America as such Lender shall
determine are payable by, or withheld from, such Lender in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence, which request shall be accompanied by a statement
from such Lender setting forth, in reasonable detail, the computations used in
determining such amounts. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes, or any withholding or
deduction on account thereof, is due pursuant to applicable law certified copies
of tax receipts, or other evidence satisfactory to the Lender, evidencing such
payment by the Borrower. The Borrower will indemnify and hold harmless the
Administrative Agent and each Lender, and reimburse the Administrative Agent or
such Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid or withheld by such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in section 7701(a)(30) of the Code) for Federal income tax purposes
agrees to provide to the Borrower and the Administrative Agent on or prior to
the Effective Date, or in the cases of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to section 12.4 (unless
the respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer and such Lender is in compliance with the provisions of
this section 5.5(b)), on the date of such assignment or transfer to such Lender,
(i) two accurate and complete original signed copies of Internal Revenue Service
Form 4224 or 1001 (or successor forms) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement, any Note or any other Credit Document,
or (ii) if the Lender is not a "bank" within the meaning of section 881(c)(3)(A)
of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit F (any such certificate, a "SECTION 5.5(b)(ii) CERTIFICATE") and (y) two
accurate and complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement, any Note or any other Credit Document.
In addition, each Lender agrees that from time to time after the Effective Date,
when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001, or Form W-8 and a
Section 5.5(b)(ii) Certificate, as the case may be, and such other forms as may
be required in order to confirm or establish the entitlement of such Lender to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement, any Note or any other Credit Document,
or it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such Form or Certificate pursuant to this
section 5.5(b).
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Notwithstanding anything to the contrary contained in section 5.5(a), but
subject to section 12.4(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or other similar taxes imposed by the United States
(or any political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any Lender
which is not a United States person (as such term is defined in section
7701(a)(30) of the Code) for United States federal income tax purposes and which
has not provided to the Borrower such forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to section 5.5(a) hereof to gross-up payments to be made to a Lender in
respect of income or similar taxes imposed by the United States or any
additional amounts with respect thereto (I) if such Lender has not provided to
the Borrower the Internal Revenue Service forms required to be provided to the
Borrower pursuant to this section 5.5(b) or (II) in the case of a payment other
than interest, to a Lender described in clause (ii) above, to the extent that
such forms do not establish a complete exemption from withholding of such taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this section 5.5 and except as specifically provided for in section
12.4(b), the Borrower agrees to pay additional amounts and indemnify each Lender
in the manner set forth in section 5.5(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any Taxes
deducted or withheld by it as described in the previous sentence as a result of
any changes after the Effective Date in any applicable law, treaty, governmental
rule, regulation, guideline or order, or in the interpretation thereof, relating
to the deducting or withholding of income or similar Taxes.
(c) If any Lender, in its sole opinion, determines that it has finally
and irrevocably received or been granted a refund in respect of any Taxes paid
as to which indemnification has been paid by the Borrower pursuant to this
section, it shall promptly remit such refund (including any interest received in
respect thereof), net of all out-of-pocket costs and expenses; PROVIDED, that
the Borrower agrees to promptly return any such refund (plus interest, if
previously paid to the Borrower with the refund) to such Lender in the event
such Lender is required to repay such refund to the relevant taxing authority.
Any such Lender shall provide the Borrower with a copy of any notice of
assessment from the relevant taxing authority (redacting any unrelated
confidential information contained therein) requiring repayment of such refund.
Nothing contained herein shall impose an obligation on any Lender to apply for
any such refund.
(d) Reference is hereby made to the provisions of section 2.10(d) for
certain limitations upon the rights of a Lender under this section.
SECTION 6. CONDITIONS PRECEDENT.
6.1. CONDITIONS PRECEDENT AT CLOSING DATE. The obligation of the
Lenders to make Loans, and of any Letter of Credit Issuer to issue Letters of
Credit, is subject to the satisfaction of each of the following conditions on
the Closing Date:
(a) EFFECTIVENESS; NOTES. On or prior to the Closing Date, (i)
the Effective Date shall have occurred and (ii) there shall have been
delivered to the Administrative Agent for the account of each Lender
the appropriate Note or Notes executed by the Borrower, in each case,
in the amount, maturity and as otherwise provided herein.
(b) FEES, ETC. The Borrower shall have paid or caused to be
paid all fees required to be paid by it on or prior to such date
pursuant to section 4.1 hereof and all reasonable fees and expenses of
the Administrative Agent and of special counsel to the Administrative
Agent which have been invoiced on or prior to such date in connection
with the preparation, execution and delivery of this Agreement and the
other Credit Documents and the consummation of the transactions
contemplated hereby and thereby.
(c) OTHER CREDIT DOCUMENTS. The Credit Parties named therein
shall have duly executed and delivered and there shall be in full force
and effect, and original counterparts shall have been delivered to the
Administrative Agent, in sufficient quantities for the Administrative
Agent and the Lenders, of, the Subsidiary Guaranty (as modified,
amended or supplemented from time to time in accordance with the terms
thereof and hereof, the "SUBSIDIARY GUARANTY"), substantially in the
form attached hereto as Exhibit C.
(d) CORPORATE RESOLUTIONS AND APPROVALS. The Administrative
Agent shall have received, in sufficient quantity for the
Administrative Agent and the Lenders, certified copies of the
resolutions of the Board
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of Directors of the Borrower and each other Credit Party, approving the
Credit Documents to which the Borrower or any such other Credit Party,
as the case may be, is or may become a party, and of all documents
evidencing other necessary corporate action and governmental approvals,
if any, with respect to the execution, delivery and performance by the
Borrower or any such other Credit Party of the Credit Documents to
which it is or may become a party.
(e) INCUMBENCY CERTIFICATES. The Administrative Agent shall
have received, in sufficient quantity for the Administrative Agent and
the Lenders, a certificate of the Secretary or an Assistant Secretary
of the Borrower and of each other Credit Party, certifying the names
and true signatures of the officers of the Borrower or such other
Credit Party, as the case may be, authorized to sign the Credit
Documents to which the Borrower or such other Credit Party is a party
and any other documents to which the Borrower or any such other Credit
Party is a party which may be executed and delivered in connection
herewith.
(f) OPINION OF COUNSEL. On the Closing Date, the
Administrative Agent shall have received an opinion, addressed to the
Administrative Agent and each of the Lenders and dated the Closing
Date, from Kohrman, Jackson & Krantz P.L.L., special counsel to the
Borrower, substantially in the form of Exhibit D hereto and covering
such other matters incident to the transactions contemplated hereby as
the Administrative Agent may reasonably request, such opinion to be in
form and substance satisfactory to the Administrative Agent.
(g) EXISTING CREDIT FACILITY. Contemporaneously with the
Closing Date, the Borrower shall have terminated its existing credit
agreement entered into in November 1996 with BT Commercial Corporation,
prepaid any borrowings thereunder, and obtained written confirmation
from such lender that all liens and security interests securing such
credit agreement are terminated and that formal termination and release
of liens and security interests of record will be effected upon
presentation of appropriate instruments of termination or release.
(h) PROCEEDS OF IPO AND TERM LOANS, ETC. The Borrower shall
have completed the initial public offering of shares of its common
stock as contemplated by the Registration Statement, without any
material changes in the terms of such offering from those contemplated
by the Registration Statement which have not been approved by the
Required Lenders (the "IPO"), for gross proceeds to the Borrower of
such offering of at least $45,000,000. The Borrower shall have made
arrangements, satisfactory to the Administrative Agent, (i) to call for
redemption at least $35,000,000 outstanding principal amount of its
Senior Notes, (ii) for the segregation from other funds and use of
$35,000,000 (or such greater amount as shall be required for such
purpose) of the proceeds of the IPO to effect such redemption, to pay
accrued interest on such Senior Notes to be so redeemed to the date of
redemption, and to pay any redemption premium associated therewith,
(iii) to call for redemption the entire outstanding principal amount of
its Senior Subordinated Notes, (iv) for the use of proceeds of the Term
Loans and/or any remaining proceeds of the IPO, in such amount as shall
be required for such purpose, to effect such redemption and to pay
accrued interest on such Senior Subordinated Notes to the date of
redemption, (v) to call for redemption the shares of the Borrower's
Series A, B and C Preferred Stock which are identified in the
Registration Statement as being the subject of redemption by the
Borrower, and (vi) for the segregation from other funds and use of
proceeds of the Term Loans and/or any remaining proceeds of the IPO, in
such amount as shall be required for such purpose, to effect such
redemption and to pay accrued dividends, if any, on such Preferred
Stock to the date of redemption.
(i) PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings and all documents incidental to the transactions
contemplated hereby shall be satisfactory in substance and form to the
Administrative Agent and the Lenders and the Administrative Agent and
its special counsel and the Lenders shall have received all such
counterpart originals or certified or other copies of such documents as
the Administrative Agent or its special counsel or any Lender may
reasonably request.
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6.2. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS. The obligations of the
Lenders to make each Loan and/or of a Letter of Credit Issuer to issue each
Letter of Credit is subject, at the time thereof, to the satisfaction of the
following conditions:
(a) NOTICE OF BORROWING, ETC. The Administrative Agent shall
have received a Notice of Borrowing meeting the requirements of section
2.3 with respect to the incurrence of Loans or a Letter of Credit
Request meeting the requirement of section 3.2 with respect to the
issuance of a Letter of Credit.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of
each Credit Event and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties of the Credit Parties contained herein or in the other
Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event, except to the
extent that such representations and warranties expressly relate to an
earlier specified date, in which case such representations and
warranties shall have been true and correct in all material respects as
of the date when made.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Lenders that all of
the applicable conditions specified in section 6.1 and/or 6.2, as the case may
be, exist as of that time. All of the certificates, legal opinions and other
documents and papers referred to in this section 6, unless otherwise specified,
shall be delivered to the Administrative Agent for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts for each of the
Lenders, and the Administrative Agent will promptly distribute to the Lenders
their respective Notes and the copies of such other certificates, legal opinions
and documents.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement and to make
the Loans, and/or to issue and/or to participate in the Letters of Credit
provided for herein, the Borrower makes the following representations and
warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and each Credit Event:
7.1. CORPORATE STATUS, ETC. Each of the Borrower and its Subsidiaries
(i) is a duly organized or formed and validly existing corporation, partnership
or limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its formation and has the corporate, partnership or
limited liability company power and authority, as applicable, to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage, and (ii) has duly qualified and is authorized to
do business in all jurisdictions where it is required to be so qualified except
where the failure to be so qualified would not have a Material Adverse Effect.
7.2. SUBSIDIARIES. Annex II hereto lists, as of the date hereof, each
Subsidiary of the Borrower (and the direct and indirect ownership interest of
the Borrower therein).
7.3. CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is party and has taken all
necessary corporate or other organizational action to authorize the execution,
delivery and performance of the Credit Documents to which it is party. Each
Credit Party has duly executed and delivered each Credit Document to which it is
party and each Credit Document to which it is party constitutes the legal, valid
and binding agreement or obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at law).
7.4. NO VIOLATION. Neither the execution, delivery and performance by
any Credit Party of the Credit Documents to which it is party nor compliance
with the terms and provisions thereof (i) will contravene any provision of any
law, statute, rule, regulation, order, writ, injunction or decree of any court
or governmental instrumentality applicable to such Credit Party or its
properties and assets, (ii) will conflict with or result in any breach of, any
of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
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or impose) any Lien upon any of the property or assets of such Credit Party
pursuant to the terms of any promissory note, bond, debenture, indenture,
mortgage, deed of trust, credit or loan agreement, or any other material
agreement or other instrument, to which such Credit Party is a party or by which
it or any of its property or assets are bound or to which it may be subject, or
(iii) will violate any provision of the certificate or articles of
incorporation, code of regulations or by-laws, or other charter documents of
such Credit Party.
7.5. GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by any Credit Party of
any Credit Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any Credit Document to which any Credit
Party is a party.
7.6. LITIGATION. There are no actions, suits or proceedings pending or,
to, the knowledge of the Borrower, threatened with respect to the Borrower or
any of its Subsidiaries (i) that have, or could reasonably be expected to have,
a Material Adverse Effect, or (ii) which question the validity or enforceability
of any of the Credit Documents, or of any action to be taken by any Credit Party
pursuant to any of the Credit Documents to which it is a party.
7.7. USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all Loans
shall be utilized (i) to retire the Indebtedness referred to in sections 6.1(g)
and (h), as provided therein, (ii) to finance Acquisitions permitted hereunder,
and (iii) for other lawful purposes not inconsistent with the requirements of
this Agreement.
(b) No part of the proceeds of any Credit Event will be used directly
or indirectly to purchase or carry Margin Stock, or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock. Neither any Credit
Event, nor the use of the proceeds thereof, will violate or be inconsistent with
the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. At no time
would more than 25% of the value of the assets of the Borrower or of the
Borrower and its consolidated Subsidiaries that are subject to any "arrangement"
(as such term is used in section 221.2(g) of such Regulation U) hereunder be
represented by Margin Stock.
7.8. FINANCIAL STATEMENTS, ETC. (a) The Borrower has furnished to the
Lenders and the Administrative Agent complete and correct copies of (i) the
audited consolidated balance sheets of the Borrower and its consolidated
subsidiaries as of the end of its fiscal years ended on or nearest to December
31, 1997 and December 31, 1996, and the related audited consolidated statements
of income, stockholders' equity, and cash flows for the fiscal years then ended,
accompanied by the unqualified report thereon of the Borrower's independent
accountants; and (ii) the unaudited condensed consolidated balance sheets of the
Borrower and its consolidated subsidiaries as of March 31, 1998, and the related
unaudited condensed consolidated statements of income and of cash flows of the
Borrower and its consolidated subsidiaries for the fiscal quarter or quarters
then ended. All such financial statements have been prepared in accordance with
GAAP, consistently applied (except as stated therein), and fairly present the
financial position of the Borrower and its consolidated subsidiaries as of the
respective dates indicated and the consolidated results of their operations and
cash flows for the respective periods indicated, subject in the case of any such
financial statements which are unaudited, to normal audit adjustments, none of
which could reasonably be expected to have a Material Adverse Effect.
(b) The Borrower has received consideration which is the reasonable
equivalent value of the obligations and liabilities that the Borrower has
incurred to the Administrative Agent and the Lenders. The Borrower now has
capital sufficient to carry on its business and transactions and all business
and transactions in which it is about to engage and is now solvent and able to
pay its debts as they mature and the Borrower, as of the Closing Date, owns
property having a value, both at fair valuation and at present fair salable
value, greater than the amount required to pay the Borrower's debts; and the
Borrower is not entering into the Credit Documents with the intent to hinder,
delay or defraud its creditors.
(c) The Borrower has delivered or caused to be delivered to the Lenders
prior to the execution and delivery of this Agreement (i) a copy of the
Borrower's Registration Statement on Form S-1 as filed (without Exhibits) with
the SEC on April 24, 1998, and each Amendment thereto filed with the SEC prior
to such execution and delivery (as so amended, the "REGISTRATION STATEMENT"),
which Registration Statement contains a general description of the business and
affairs of the Borrower and its Subsidiaries, and (ii) financial projections
prepared by management of the Borrower for the Borrower and its Subsidiaries for
the fiscal years 1998-2002 (the "FINANCIAL PROJECTIONS"). The Financial
Projections were prepared
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on behalf of the Borrower in good faith after taking into account the existing
and historical levels of business activity of the Borrower and its Subsidiaries,
known trends, including general economic trends, and all other information,
assumptions and estimates considered by management of the Borrower and its
Subsidiaries to be pertinent thereto. The Financial Projections were considered
by management of the Borrower, as of such date of preparation, to be
realistically achievable; PROVIDED, that no representation or warranty, express
or implied, is made as to the impact of future general economic conditions or as
to whether the Borrower's projected consolidated results as set forth in the
Financial Projections will actually be realized. No facts are known to the
Borrower at the date hereof which, if reflected in the Financial Projections,
would result in a material adverse change in the assets, liabilities, results of
operations or cash flows reflected therein.
7.9. NO MATERIAL ADVERSE CHANGE. Since December 31, 1997, there has
been no change in the condition, business or affairs of the Borrower and its
Subsidiaries taken as a whole, or their properties and assets considered as an
entirety, except for changes, none of which, individually or in the aggregate,
has had or could reasonably be expected to have, a Material Adverse Effect.
7.10. TAX RETURNS AND PAYMENTS. Each of the Borrower and each of its
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, other than
those not yet delinquent and except for those contested in good faith. The
Borrower and each of its Subsidiaries has established on its books such charges,
accruals and reserves in respect of taxes, assessments, fees and other
governmental charges for all fiscal periods as are required by GAAP. The
Borrower knows of no proposed assessment for additional federal, foreign or
state taxes for any period, or of any basis therefor, which, individually or in
the aggregate, taking into account such charges, accruals and reserves in
respect thereof as the Borrower and its Subsidiaries have made, could reasonably
be expected to have a Material Adverse Effect.
7.11. TITLE TO PROPERTIES, ETC. The Borrower and each of its
Subsidiaries has good and marketable title, in the case of real property, and
good title (or valid Leaseholds, in the case of any leased property), in the
case of all other property, to all of its properties and assets free and clear
of Liens other than Liens permitted by section 9.3. The interests of the
Borrower and each of its Subsidiaries in the properties reflected in the most
recent balance sheet referred to in section 7.8, taken as a whole, were
sufficient, in the judgment of the Borrower, as of the date of such balance
sheet for purposes of the ownership and operation of the businesses conducted by
the Borrower and such Subsidiaries.
7.12. LAWFUL OPERATIONS, ETC. The Borrower and each of its Subsidiaries
(i) holds all necessary federal, state and local governmental licenses,
registrations, certifications, permits and authorizations necessary to conduct
its business, and (ii) is in full compliance with all material requirements
imposed by law, regulation or rule, whether federal, state or local, which are
applicable to it, its operations, or its properties and assets, including
without limitation, applicable requirements of Environmental Laws, EXCEPT for
any failure to obtain and maintain in effect, or noncompliance, which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
7.13. ENVIRONMENTAL MATTERS. (a) The Borrower and each of its
Subsidiaries is in compliance with all Environmental Laws governing its
business, EXCEPT to the extent that any such failure to comply (together with
any resulting penalties, fines or forfeitures) would not reasonably be expected
to have a Material Adverse Effect. All licenses, permits, registrations or
approvals required for the conduct of the business of the Borrower and each of
its Subsidiaries under any Environmental Law have been secured and the Borrower
and each of its Subsidiaries is in substantial compliance therewith, EXCEPT for
such licenses, permits, registrations or approvals the failure to secure or to
comply therewith is not reasonably likely to have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries has received written notice, or
otherwise knows, that it is in any respect in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction, or decree to
which the Borrower or such Subsidiary is a party relating to Environmental Laws,
which would affect the ability of the Borrower or such Subsidiary to operate any
real property and no event has occurred and is continuing which, with the
passage of time or the giving of notice or both, would constitute noncompliance,
breach of or default thereunder, EXCEPT in each such case, such noncompliance,
breaches or defaults as would not reasonably be expected to, in the aggregate,
have a Material Adverse Effect. There are no Environmental Claims pending or, to
the best knowledge of the Borrower, threatened wherein an unfavorable decision,
ruling or finding would reasonably be expected to have a Material Adverse
Effect. There are no facts, circumstances, conditions or occurrences on any Real
Property now or at any time owned, leased or operated by the Borrower or any of
its Subsidiaries or on any property adjacent to any such Real Property, which
are known by the Borrower or as to which the Borrower or any such Subsidiary has
received written notice, that could reasonably be expected (i) to form the basis
of an Environmental Claim against the Borrower or any of its
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Subsidiaries or any Real Property of the Borrower or any of its Subsidiaries, or
(ii) to cause such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real Property under any
Environmental Law, except in each such case, such Environmental Claims or
restrictions that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated, used,
treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries or (ii) released on any such Real Property,
in each case where such occurrence or event is both (x) not in compliance with
Environmental Laws and (y) reasonably likely to have a Material Adverse Effect.
7.14. COMPLIANCE WITH ERISA. Compliance by the Borrower with the
provisions hereof and Credit Events contemplated hereby will not involve any
prohibited transaction within the meaning of ERISA or section 4975 of the Code.
The Borrower and each of its Subsidiaries, (i) has fulfilled all obligations
under minimum funding standards of ERISA and the Code with respect to each Plan
that is not a Multiemployer Plan or a Multiple Employer Plan, (ii) has satisfied
all respective contribution obligations in respect of each Multiemployer Plan
and each Multiple Employer Plan, (iii) is in compliance in all material respects
with all other applicable provisions of ERISA and the Code with respect to each
Plan, each Multiemployer Plan and each Multiple Employer Plan, and (iv) has not
incurred any liability under the Title IV of ERISA to the PBGC with respect to
any Plan, any Multiemployer Plan, any Multiple Employer Plan, or any trust
established thereunder. No Plan or trust created thereunder has been terminated,
and there have been no Reportable Events, with respect to any Plan or trust
created thereunder or with respect to any Multiemployer Plan or Multiple
Employer Plan, which termination or Reportable Event will or could result in the
termination of such Plan, Multiemployer Plan or Multiple Employer Plan and give
rise to a material liability of the Borrower or any ERISA Affiliate in respect
thereof. Neither the Borrower nor any ERISA Affiliate is at the date hereof, or
has been at any time within the two years preceding the date hereof, an employer
required to contribute to any Multiemployer Plan or Multiple Employer Plan, or a
"contributing sponsor" (as such term is defined in section 4001 of ERISA) in any
Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any ERISA
Affiliate has any contingent liability with respect to any post-retirement
"welfare benefit plan" (as such term is defined in ERISA) except as has been
disclosed to the Lenders in writing.
7.15. INTELLECTUAL PROPERTY, ETC. The Borrower and each of its
Subsidiaries has obtained or has the right to use all material patents,
trademarks, servicemarks, trade names, copyrights, licenses and other rights
with respect to the foregoing necessary for the present and planned future
conduct of its business, without any known conflict with the rights of others,
EXCEPT for such patents, trademarks, servicemarks, trade names, copyrights,
licenses and rights, the loss of which, and such conflicts, which in any such
case individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect.
7.16. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any of its
Subsidiaries is subject to regulation with respect to the creation or incurrence
of Indebtedness under the Investment Company Act of 1940, as amended, the
Interstate Commerce Act, as amended, the Federal Power Act, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any applicable state
public utility law.
7.17. LABOR RELATIONS. Neither the Borrower nor any of its Subsidiaries
(i) is a party to any labor dispute affecting any bargaining unit or other group
of employees generally, (ii) is subject to any material strike, slow down,
workout or other concerted interruptions of operations by employees of the
Borrower or any Subsidiary, whether or not relating to any labor contracts,
(iii) is subject to any significant pending or, to the knowledge of the
Borrower, threatened, unfair labor practice complaint, before the National Labor
Relations Board, and (iv) is subject to any significant pending or, to the
knowledge of the Borrower, threatened, grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement, (v) is
subject to any significant pending or, to the knowledge of the Borrower,
threatened, significant strike, labor dispute, slowdown or stoppage, or (vi) is,
to the knowledge of the Borrower, involved or subject to any union
representation organizing or certification matter with respect to the employees
of the Borrower or any of its Subsidiaries, EXCEPT (with respect to any matter
specified in any of the above clauses), for such matters as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
7.18. EXISTING INDEBTEDNESS. Annex III sets forth a true and complete
list, as of the date or dates set forth therein, of all Indebtedness of the
Borrower and each of its Subsidiaries, on a consolidated basis, which (i) has an
outstanding principal amount of at least $2,000,000, or may be incurred pursuant
to existing commitments or lines of credit, or (ii) which
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has an outstanding principal amount of at least $100,000 and is secured by any
Lien on any property of the Borrower or any Subsidiary, and which will be
outstanding on the Closing Date after giving effect to the initial Borrowing
hereunder, other than the Indebtedness created under the Credit Documents (all
such Indebtedness, whether or not in a principal amount meeting such threshold
and required to be so listed on Annex III, herein the "EXISTING INDEBTEDNESS").
The Borrower has provided to the Administrative Agent prior to the date of
execution hereof true and complete copies (or summary descriptions) of all
agreements and instruments governing the Indebtedness listed on Annex III (the
"EXISTING INDEBTEDNESS AGREEMENTS").
7.19. YEAR 2000 COMPUTER MATTERS. The Borrower and its Subsidiaries
have reviewed the areas within their business and operations which could be
adversely affected by, and have developed or are developing a program to address
on a timely basis the "Year 2000 Computer Issue" (that is, the risk that
computer applications used by the Borrower and its Subsidiaries may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999). Based on such review and
program, the Borrower reasonably believes that the "Year 2000 Computer Issue" is
not reasonably likely to have a Material Adverse Effect.
7.20. TRUE AND COMPLETE DISCLOSURE. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Borrower
or any of its Subsidiaries in writing to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any transaction
contemplated herein, other than the Financial Projections (as to which
representations are made only as provided in section 7.8), is, and all other
such factual information (taken as a whole) hereafter furnished by or on behalf
of such person in writing to any Lender will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any material fact necessary to make such
information (taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided, except that any such
future information consisting of financial projections prepared by management of
the Borrower is only represented herein as being based on good faith estimates
and assumptions believed by such persons to be reasonable at the time made. The
Lenders recognize that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered by any
such projections may differ materially from the projected results. As of the
Effective Date, there is no fact known to the Borrower or any of its
Subsidiaries which has, or could reasonably be expected to have, a Material
Adverse Effect which has not theretofore been disclosed in writing to the
Lenders.
SECTION 8. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that so long as this Agreement
is in effect and until such time as the Total Commitment has been terminated, no
Notes are outstanding and the Loans, together with interest, Fees and all other
Obligations hereunder, have been paid in full:
8.1. REPORTING REQUIREMENTS. The Borrower will furnish to each Lender
and the Administrative Agent:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in
any event within 90 days after the close of each fiscal year of the
Borrower, the consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income, of stockholder's equity and
of cash flows for such fiscal year, in each case setting forth
comparative figures for the preceding fiscal year, all in reasonable
detail and accompanied by the opinion with respect to such consolidated
financial statements of independent public accountants of recognized
national standing selected by the Borrower, which opinion shall be
unqualified and shall (i) state that such accountants audited such
consolidated financial statements in accordance with generally accepted
auditing standards, that such accountants believe that such audit
provides a reasonable basis for their opinion, and that in their
opinion such consolidated financial statements present fairly, in all
material respects, the consolidated financial position of the Borrower
and its consolidated subsidiaries as at the end of such fiscal year and
the consolidated results of their operations and cash flows for such
fiscal year in conformity with generally accepted accounting
principles, or (ii) contain such statements as are customarily included
in unqualified reports of independent accountants in conformity with
the recommendations and requirements of the American Institute of
Certified Public Accountants (or any successor organization).
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(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and
in any event within 45 days after the close of each of the quarterly
accounting periods in each fiscal year of the Borrower, the unaudited
condensed consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such quarterly period and
the related unaudited condensed consolidated statements of income and
of cash flows for such quarterly period, and setting forth, in the case
of such unaudited consolidated statements of income and of cash flows,
comparative figures for the related periods in the prior fiscal year,
and which consolidated financial statements shall be certified on
behalf of the Borrower by the Chief Financial Officer or other
Authorized Officer of the Borrower, subject to changes resulting from
normal year-end audit adjustments.
(c) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the
delivery of the financial statements provided for in sections 8.1(a)
and (b), a certificate on behalf of the Borrower of the Chief Financial
Officer or other Authorized Officer of the Borrower to the effect that,
to the best knowledge of the Borrower, no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying
the nature and extent thereof, which certificate shall set forth the
calculations required to establish compliance with the provisions of
sections 9.4(c), 9.5(p), and 9.7 through 9.9, inclusive of this
Agreement, and the computation of its ratio of Consolidated Net Debt as
of the end of such fiscal period to Consolidated EBITDA for the Testing
Period then ended, including an identification of the amounts of any
financial items of persons or business units acquired by the Borrower
for any periods prior to the date of acquisition which are used in
making such calculations.
(d) ADDITIONAL QUARTERLY DIVISIONAL OR LINE OF BUSINESS
FINANCIAL INFORMATION; ANNUAL BUDGETS AND FORECASTS. (i) As soon as
available and in any event within 45 days after the close of each of
the first three quarterly accounting periods in each fiscal year of the
Borrower, or within 90 days after the close of the final quarterly
accounting period in each fiscal year of the Borrower, as the case may
be, such unaudited consolidated or consolidating profit and loss
statements as the Borrower produces for itself for internal management
purposes, for each division or line of business of the Borrower and its
consolidated Subsidiaries for such quarterly period.
(ii) Not later than 30 days prior to the commencement of any
fiscal year of the Borrower and its Subsidiaries, a consolidated budget
in reasonable detail for each of fiscal quarter in such fiscal year,
and (if and to the extent prepared by management of the Borrower) for
any subsequent fiscal years, as customarily prepared by management for
its internal use, setting forth, with appropriate discussion, the
forecasted balance sheet, income statement, operating cash flows and
Consolidated Capital Expenditures of the Borrower and its Subsidiaries
for the period covered thereby, and the principal assumptions upon
which forecasts and budget are based.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within three Business Days, in the case of clause (i) below, or
five Business Days, in the case of clause (ii) below, after the
Borrower or any of its Subsidiaries obtains knowledge thereof, notice
of
(i) the occurrence of any event which constitutes a
Default or Event of Default, which notice shall specify the
nature thereof, the period of existence thereof and what
action the Borrower proposes to take with respect thereto, and
(ii) any litigation or governmental or regulatory
investigation or proceeding pending against or involving the
Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect or a material
adverse effect on the ability of the Borrower to perform its
obligations hereunder or under any other Credit Document.
(f) ERISA. Promptly, and in any event within 10 days after the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows
of the occurrence of any of the following, the Borrower will deliver to
each of the Lenders a certificate on behalf of the Borrower of an
Authorized Officer of the Borrower setting forth the full details as to
such occurrence and the action, if any, that the Borrower, such
Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed
with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant or the Plan administrator with respect thereto:
(i) that a Reportable Event has occurred with respect
to any Plan;
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(ii) the institution of any steps by the Borrower,
any ERISA Affiliate, the PBGC or any other person to terminate
any Plan;
(iii) the institution of any steps by the Borrower or
any Subsidiary to withdraw from any Multiemployer Plan or
Multiple Employer Plan, if such withdrawal could result in
withdrawal liability (as described in Part 1 of Subtitle E of
Title IV of ERISA) in excess of $1,000,000;
(iv) the institution of any steps by the Borrower or
any ERISA Affiliate to withdraw from any Plan, if such
withdrawal could result in withdrawal liability in excess of
$1,000,000;
(v) a non-exempt "prohibited transaction" within the
meaning of section 406 of ERISA in connection with any Plan;
(vi) that a Plan has an Unfunded Current Liability
exceeding $3,000,000;
(vii) any material increase in the contingent
liability of the Borrower or any Subsidiary with respect to
any post-retirement welfare liability; or
(viii) the taking of any action by, or the
threatening of the taking of any action by, the Internal
Revenue Service, the Department of Labor or the PBGC with
respect to any of the foregoing.
(g) ENVIRONMENTAL MATTERS. Promptly upon, and in any event
within 10 Business Days after, an officer of the Borrower obtains
actual knowledge thereof, notice of any of the following environmental
matters which involves any reasonable likelihood (in the Borrower's
reasonable judgment) of resulting in a Material Adverse Effect: (i) any
pending or threatened (in writing) Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries; (ii) any condition
or occurrence on or arising from any Real Property owned or operated by
the Borrower or any of its Subsidiaries that (A) results in
noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or (B) would reasonably be expected to
form the basis of an Environmental Claim against the Borrower or any of
its Subsidiaries or any such Real Property; (iii) any condition or
occurrence on any Real Property owned, leased or operated by the
Borrower or any of its Subsidiaries that could reasonably be expected
to cause such Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower or any of
its Subsidiaries of such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental
or other administrative agency. All such notices shall describe in
reasonable detail the nature of the Environmental Claim and the
Borrower's or such Subsidiary's response thereto.
(h) SEC REPORTS AND REGISTRATION STATEMENTS. Promptly upon
transmission thereof or other filing with the SEC, copies of all
registration statements (other than the exhibits thereto and any
registration statement on Form S-8 or its equivalent) and annual,
quarterly or current reports that the Borrower or any of its
Subsidiaries files with the SEC.
(i) OTHER INFORMATION. With reasonable promptness, such other
information or documents (financial or otherwise) relating to the
Borrower or any of its Subsidiaries as any Lender may reasonably
request from time to time.
8.2. BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will cause
each of its Subsidiaries to, (i) keep proper books of record and account, in
which full and correct entries shall be made of all financial transactions and
the assets and business of the Borrower or such Subsidiaries, as the case may
be, in accordance with GAAP, in the case of the Borrower, or which are
reconcilable to a GAAP presentation, in the case of any Subsidiary; and (ii)
permit, upon at least five Business Days' notice to the Chief Financial Officer
or any other Authorized Officer of the Borrower, officers and designated
representatives of the Administrative Agent or any of the Lenders to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries in whomsoever's possession (but only to the extent the Borrower or
such
46
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Subsidiary has the right to do so to the extent in the possession of another
person), and to examine (and make copies of or take extracts from) the books of
account of the Borrower and any of its Subsidiaries and discuss the affairs,
finances and accounts of the Borrower and of any of its Subsidiaries with, and
be advised as to the same by, its and their officers and independent accountants
and independent actuaries, if any, all at such reasonable times and intervals
and to such reasonable extent as the Administrative Agent or any of the Lenders
may request.
8.3. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, (i) maintain insurance coverage by such insurers and in such
forms and amounts and against such risks as are generally consistent with the
insurance coverage maintained by the Borrower and its Subsidiaries at the date
hereof, and (ii) forthwith upon any Lender's written request, furnish to such
Lender such information about such insurance as such Lender may from time to
time reasonably request, which information shall be prepared in form and detail
satisfactory to such Lender and certified by an Authorized Officer of the
Borrower.
8.4. PAYMENT OF TAXES AND CLAIMS. The Borrower will pay and discharge,
and will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; PROVIDED that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP; and PROVIDED,
FURTHER, that the Borrower will not be considered to be in default of any of the
provisions of this sentence if the Borrower or any Subsidiary fails to pay any
such amount which, individually or in the aggregate, is immaterial to the
Borrower and its Subsidiaries considered as an entirety.
8.5. CORPORATE FRANCHISES. The Borrower will do, and will cause each of
its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its corporate or other organizational
existence, rights, authority and franchises, PROVIDED that nothing in this
section 8.5 shall be deemed to prohibit (i) any transaction permitted by section
9.2; (ii) the termination of existence of any Subsidiary if (A) the Borrower
determines that such termination is in its best interest and (B) such
termination is not adverse in any material respect to the Lenders; or (iii) the
loss of any rights, authorities or franchises if the loss thereof, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
8.6. GOOD REPAIR. The Borrower will, and will cause each of its
Subsidiaries to, ensure that its material properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and that
from time to time there are made in such properties and equipment all needful
and proper repairs, renewals, replacements, extensions, additions, betterments
and improvements, thereto, to the extent and in the manner customary for
companies in similar businesses.
8.7. COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will cause
each of its Subsidiaries to, comply, in all material respects, with all
applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its property, other than those (i)
being contested in good faith by appropriate proceedings, as to which adequate
reserves are established to the extent required under GAAP, and (ii) the
noncompliance with which would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse effect on the
ability of the Borrower to perform its obligations under any Credit Document.
8.8. COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limitation of the
covenants contained in section 8.7 hereof:
(a) The Borrower will, and will cause each of its Subsidiaries
to, (i) comply, in all material respects, with all Environmental Laws
applicable to the ownership, lease or use of all Real Property now or
hereafter owned, leased or operated by the Borrower or any of its
Subsidiaries, and promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, except for such
noncompliance as would not have, and which would not be reasonably
expected to have, a Material Adverse Effect or a material adverse
effect on the ability of the Borrower to perform its obligations under
any Credit Document; and (ii) keep or cause to be kept all
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such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws which are not permitted under section 9.3.
(b) Without limitation of the foregoing, if the Borrower or
any of its Subsidiaries shall generate, use, treat, store, release or
dispose of, or permit the generation, use, treatment, storage, release
or disposal of, Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, any such action shall be
effected only in the ordinary course of business and in any event in
compliance, in all material respects, with all Environmental Laws
applicable thereto, except for such noncompliance as would not have,
and which would not be reasonably expected to have, a Material Adverse
Effect or a material adverse effect on the ability of the Borrower to
perform its obligations under any Credit Document.
(c) If required to do so under any applicable order of any
governmental agency, the Borrower will undertake, and cause each of its
Subsidiaries to undertake, any clean up, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from
any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries in accordance with, in all material respects, the
requirements of all applicable Environmental Laws and in accordance
with, in all material respects, such orders of all governmental
authorities, except (i) to the extent that the Borrower or such
Subsidiary is contesting such order in good faith and by appropriate
proceedings and for which adequate reserves have been established to
the extent required by GAAP, or (ii) for such noncompliance as would
not have, and which would not be reasonably expected to have, a
Material Adverse Effect or a material adverse effect on the ability of
the Borrower to perform its obligations under any Credit Document.
8.9. FISCAL YEARS, FISCAL QUARTERS. The Borrower will, for consolidated
financial reporting purposes, continue to use December 31 as the end of its
fiscal year and March 31, June 30 and September 30 as the end of its first three
fiscal quarters. If the Borrower shall change any of its Subsidiaries' fiscal
years or fiscal quarters (other than the fiscal year or fiscal quarters of a
person which becomes a Subsidiary, made at the time such person becomes a
Subsidiary, to conform to the Borrower's fiscal year and fiscal quarters or to
conform to the fiscal year or fiscal quarters which the Borrower generally
utilizes for its Subsidiaries), the Borrower will promptly, and in any event
within 30 days following any such change, deliver a notice to the Administrative
Agent and the Lenders describing such change and any material accounting entries
made in connection therewith and stating whether such change will have any
impact upon any financial computations to be made hereunder, and if any such
impact is foreseen, describing in reasonable detail the nature and extent of
such impact. If the Required Lenders determine that any such change will have
any impact upon any financial computations to be made hereunder which is adverse
to the Lenders, the Borrower will, if so requested by the Administrative Agent,
enter into an amendment to this Agreement, in form and substance satisfactory to
the Administrative Agent and the Required Lenders, modifying any of the
financial covenants or related provisions hereof in such manner as the Required
Lenders determine is necessary to eliminate such adverse effect.
8.10. CERTAIN SUBSIDIARIES TO JOIN IN SUBSIDIARY GUARANTY. (a) In the
event that at any time after the Closing Date
(x) the Borrower has any Subsidiary (other than a Foreign
Subsidiary as to which section 8.10(b) applies) which is not a party to
the Subsidiary Guaranty, or
(y) an Event of Default shall have occurred and be continuing
and the Borrower has any Subsidiary which is not a party to the
Subsidiary Guaranty,
the Borrower will notify the Administrative Agent in writing of such event,
identifying the Subsidiary in question and referring specifically to the rights
of the Administrative Agent and the Lenders under this section. The Borrower
will, within 30 days following request therefor from the Administrative Agent
(who may give such request on its own initiative or upon request by the Required
Lenders), cause such Subsidiary to deliver to the Administrative Agent, in
sufficient quantities for the Lenders, (i) a joinder supplement, satisfactory in
form and substance to the Administrative Agent and the Required Lenders, duly
executed by such Subsidiary, pursuant to which such Subsidiary joins in the
Subsidiary Guaranty as a guarantor thereunder, and (ii) if such Subsidiary is a
corporation, resolutions of the Board of Directors of such Subsidiary, certified
by the Secretary or an Assistant Secretary of such Subsidiary as duly adopted
and in full force and effect, authorizing the
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execution and delivery of such joinder supplement, or if such Subsidiary is not
a corporation, such other evidence of the authority of such Subsidiary to
execute such joinder supplement as the Administrative Agent may reasonably
request.
(b) Notwithstanding the foregoing provisions of this section 8.10, the
Borrower shall not, unless an Event of Default shall have occurred and be
continuing, be required to cause a Foreign Subsidiary to join in the Subsidiary
Guaranty if (i) to do so would subject the Borrower to liability for additional
United States income taxes by virtue of section 956 of the Code in an amount the
Borrower considers material, and (ii) the Borrower provides the Administrative
Agent, within the 30-day period referred to in section 8.10(a), with
documentation, including computations prepared by the Borrower's internal tax
officer, its independent accountants or tax counsel, acceptable to the Required
Lenders, in support thereof.
8.11. HEDGE AGREEMENTS, ETC. In the event the Borrower or any of its
Subsidiaries determines to enter into a Hedge Agreement it may do so, PROVIDED
that (i) the purpose of such Hedge Agreement is to provide protection to the
Borrower or any such Subsidiary from fluctuations and other changes in interest
rates and currency exchange rates, as and to the extent considered reasonably
necessary by the Borrower, but without exposing the Borrower or its Subsidiaries
to predominantly speculative risks unrelated to the amount of assets,
Indebtedness or other liabilities intended to be subject to coverage on a
notional basis under all such Hedge Agreements; and (ii) in the case of any
Hedge Agreement entered into after the Effective Date, only if the proposed form
thereof (including any proposed pricing or other material terms) has been
provided to the Administrative Agent contemporaneously with the entry into such
Hedge Agreement.
8.12. MOST FAVORED COVENANT STATUS. Should the Borrower at any time
after the Effective Date, issue or guarantee any unsecured Indebtedness
denominated in U.S. dollars for money borrowed or represented by bonds, notes,
debentures or similar securities in an aggregate amount exceeding $10,000,000,
to any lender or group of lenders acting in concert with one another, or one or
more institutional investors, pursuant to a loan agreement, credit agreement,
note purchase agreement, indenture, guaranty or other similar instrument, which
agreement, indenture, guaranty or instrument, includes affirmative or negative
business or financial covenants (or any events of default or other type of
restriction which would have the practical effect of any affirmative or negative
business or financial covenant, including, without limitation, any "put" or
mandatory prepayment of such Indebtedness upon the occurrence of a "change of
control") which are applicable to the Borrower, other than those set forth
herein or in any of the other Credit Documents, the Borrower shall promptly so
notify the Administrative Agent and the Lenders and, if the Administrative Agent
shall so request by written notice to the Borrower (after a determination has
been made by the Required Lenders that any of the above-referenced documents or
instruments contain any such provisions, which either individually or in the
aggregate, are more favorable to the holders of such unsecured Indebtedness than
any of the provisions set forth herein), the Borrower, the Administrative Agent
and the Lenders shall promptly amend this Agreement to incorporate some or all
of such provisions, in the discretion of the Administrative Agent and the
Required Lenders, into this Agreement and, to the extent necessary and
reasonably desirable to the Administrative Agent and the Required Lenders, into
any of the other Credit Documents, all at the election of the Administrative
Agent and the Required Lenders.
8.13. SENIOR DEBT. The Borrower will at all times ensure that (a) the
claims of the Lenders in respect of the Obligations of the Borrower will not be
subordinate to, and will in all respects at least rank PARI PASSU with, the
claims of every other senior unsecured creditor of the Borrower, and (b) any
Indebtedness subordinated in any manner to the claims of any other senior
unsecured creditor of the Borrower will be subordinated in like manner to such
claims of the Lenders.
SECTION 9. NEGATIVE COVENANTS.
The Borrower hereby covenants and agrees that on the Effective Date and
thereafter for so long as this Agreement is in effect and until such time as the
Total Commitment has been terminated, no Notes remain outstanding and the Loans,
together with interest, Fees and all other Obligations incurred hereunder are
paid in full:
9.1. CHANGES IN BUSINESS. Neither the Borrower nor any of its
Subsidiaries will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Borrower and its Subsidiaries, would be substantially changed from the
business engaged in by the Borrower and its Subsidiaries on the date hereof, as
described in the Registration Statement.
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9.2. CONSOLIDATION, MERGER, ACQUISITIONS, ASSET SALES, ETC. The
Borrower will not, and will not permit any Subsidiary to, (1) wind up, liquidate
or dissolve its affairs, (2) enter into any transaction of merger or
consolidation, (3) make or otherwise effect any Acquisition, (4) sell or
otherwise dispose of any of its property or assets outside the ordinary course
of business, or otherwise make or otherwise effect any Asset Sale, or (5) agree
to do any of the foregoing at any future time, EXCEPT that the following shall
be permitted:
(a) CERTAIN INTERCOMPANY MERGERS, ETC. If no Default or Event
of Default shall have occurred and be continuing or would result
therefrom, (i) the merger, consolidation or amalgamation of any
Wholly-Owned Subsidiary with or into the Borrower or another
Wholly-Owned Subsidiary, so long as in any merger, consolidation or
amalgamation involving the Borrower, the Borrower is the surviving or
continuing or resulting corporation, (ii) the liquidation or
dissolution of any Wholly-Owned Subsidiary of the Borrower, and (iii)
the transfer or other disposition of any property by the Borrower to
any Wholly-Owned Subsidiary or by any Wholly-Owned Subsidiary to the
Borrower or any other Wholly-Owned Subsidiary of the Borrower, shall
each be permitted.
(b) PERMITTED ACQUISITIONS. If no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the
Borrower or any Subsidiary may make any Acquisition which is a
Permitted Acquisition, PROVIDED that all of the conditions contained in
the definition of the term Permitted Acquisition are satisfied.
(c) PERMITTED DISPOSITIONS. If no Default or Event of Default
shall have occurred and be continuing or would result therefrom, the
Borrower or any of its Subsidiaries may (i) sell any property, land or
building (including any related receivables or other intangible assets)
to any person which is not a Subsidiary of the Borrower, or (ii) sell
the entire capital stock (or other equity interests) and Indebtedness
of any Subsidiary owned by the Borrower or any other Subsidiary to any
person which is not a Subsidiary of the Borrower, or (iii) permit any
Subsidiary to be merged or consolidated with a person which is not an
Affiliate of the Borrower, or (iv) consummate any other Asset Sale with
a person who is not a Subsidiary of the Borrower; PROVIDED that:
(A) the consideration for such transaction represents
fair value (as determined by management of the Borrower), and
at least 75% of such consideration consists of cash,
(B) the aggregate consideration for all such
transactions completed during any fiscal year does not exceed
$10,000,000; and
(C) in the case of any such transaction involving
consideration in excess of $5,000,000, at least five Business
Days prior to the date of completion of such transaction the
Borrower shall have delivered to the Administrative Agent an
officer's certificate executed on behalf of the Borrower by an
Authorized Officer of the Borrower, which certificate shall
contain a description of the proposed transaction, the date
such transaction is scheduled to be consummated, the estimated
purchase price or other consideration for such transaction,
financial information pertaining to compliance with the
preceding clauses (A) and (B), and which shall (if requested
by the Administrative Agent) include a certified copy of the
draft or definitive documentation pertaining thereto.
(d) LEASES. The Borrower or any of its Subsidiaries may enter
into leases of property or assets not constituting Acquisitions,
provided such leases are not otherwise in violation of this Agreement.
(e) CAPITAL EXPENDITURES: The Borrower and it Subsidiaries
shall be permitted to make any Consolidated Capital Expenditures.
(f) PERMITTED INVESTMENTS. The Borrower and it Subsidiaries
shall be permitted to make the investments permitted pursuant to
section 9.5.
9.3. LIENS. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with or without
recourse to the Borrower or any of its Subsidiaries, other than for purposes of
collection
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of delinquent accounts in the ordinary course of business) or assign any right
to receive income, or file or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute, EXCEPT that the foregoing restrictions shall not apply to:
(a) STANDARD PERMITTED LIENS: the Standard Permitted Liens;
(b) EXISTING LIENS, ETC.: Liens (i) in existence on the
Effective Date which are listed, and the Indebtedness secured thereby
and the property subject thereto on the Effective Date described, in
Annex IV, or (ii) arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any such Liens, PROVIDED that
the principal amount of such Indebtedness is not increased and such
Indebtedness is not secured by any additional assets; and
(c) PURCHASE MONEY LIENS AND LIENS ON ACQUIRED PROPERTIES:
Liens which
(i) are placed upon equipment or machinery or
improvements to Real Property (including the associated Real
Property) used in the ordinary course of business of the
Borrower or any Subsidiary at the time of (or within 180 days
after) the acquisition of such equipment or machinery or the
completion of such improvements by the Borrower or any such
Subsidiary to secure Indebtedness incurred to pay or finance
all or a portion of the purchase price or other cost thereof,
PROVIDED that the Lien encumbering the equipment or machinery
so acquired or the Real Property so improved does not encumber
any other asset of the Borrower or any such Subsidiary; or
(ii) are existing on property or other assets at the
time acquired by the Borrower or any Subsidiary or on assets
of a person at the time such person first becomes a Subsidiary
of the Borrower; PROVIDED that (A) any such Liens were not
created at the time of or in contemplation of the acquisition
of such assets or person by the Borrower or any of its
Subsidiaries; (B) in the case of any such acquisition of a
person, any such Lien attaches only to the property and assets
of such person; and (C) in the case of any such acquisition of
property or assets by the Borrower or any Subsidiary, any such
Lien attaches only to the property and assets so acquired and
not to any other property or assets of the Borrower or any
Subsidiary;
PROVIDED that (1) the Indebtedness secured by any such Lien does not
exceed 100% of the fair market value of the property and assets to
which such Lien attaches, determined at the time of the acquisition or
improvement of such property or asset or the time at which such person
becomes a Subsidiary of the Borrower (except in the circumstances
described in clause (ii) above to the extent such Liens constituted
customary purchase money Liens at the time of incurrence and were
entered into in the ordinary course of business), and (2) the
Indebtedness secured thereby is permitted by section 9.4(c).
9.4. INDEBTEDNESS. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness of the Borrower or any of its Subsidiaries, EXCEPT:
(a) CREDIT DOCUMENTS: Indebtedness incurred under this
Agreement and the other Credit Documents;
(b) EXISTING INDEBTEDNESS: Existing Indebtedness; and any
refinancing, extension, renewal or refunding of any such Existing
Indebtedness not involving an increase in the principal amount thereof
or a reduction of more than 10% in the remaining weighted average life
to maturity thereof (computed in accordance with standard financial
practice); PROVIDED that any Existing Indebtedness identified in Annex
III or referred to in section 6.1 as being intended to be refinanced by
Loans incurred hereunder or otherwise retired, may not be otherwise
refinanced, and, PROVIDED, FURTHER, that any Existing Indebtedness
which is contemplated by the Registration Statement or this Agreement
to be retired out of the proceeds of the IPO and/or the Term Loans may
not be otherwise refinanced;
(c) PRIORITY DEBT: the following Indebtedness (collectively,
"PRIORITY DEBT"):
(i) Indebtedness consisting of Capital Lease Obligations of
the Borrower and its Subsidiaries,
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(ii) Indebtedness secured by a Lien on any property
of the Borrower or any Subsidiary, and
(iii) other Indebtedness of Subsidiaries of the
Borrower (exclusive of Indebtedness owed pursuant to any of
the Credit Documents or to the Borrower or a Wholly-Owned
Subsidiary of the Borrower);
PROVIDED that (A) at the time of any incurrence thereof after the date
hereof, and after giving effect thereto, the Borrower would be in
compliance with section 9.8, and no Event of Default shall have
occurred and be continuing or would result therefrom; and (B) the
aggregate outstanding principal amount (using Capitalized Lease
Obligations in lieu of principal amount, in the case of any Capital
Lease) of Priority Debt permitted by this clause (c), exclusive of the
guarantees by Subsidiaries of the Borrower of the Borrower's Senior
Notes, shall not exceed an amount equal to the greater of (x)
$9,500,000, or (y) 10% of the Borrower's Consolidated Net Worth as of
the end of the most recent fiscal period for which financial statements
have been delivered to the Lenders hereunder;
(d) INTERCOMPANY DEBT: Indebtedness of the Borrower to any of
its Subsidiaries, and Indebtedness of any of the Borrower's
Subsidiaries to the Borrower or to another Subsidiary of the Borrower;
(e) HEDGE AGREEMENTS: Indebtedness of the Borrower and its
Subsidiaries under Hedge Agreements; and
(f) ADDITIONAL UNSECURED DEBT AND GUARANTY OBLIGATIONS:
additional unsecured Indebtedness of the Borrower (including additional
unsecured Guaranty Obligations of the Borrower), not in excess of
$10,000,000 aggregate principal amount outstanding at any time,
PROVIDED that at the time of incurrence thereof, and after giving
effect thereto, (i) the Borrower would be in compliance with section
9.8; and (ii) no Event of Default shall have occurred and be continuing
or would result therefrom.
9.5. ADVANCES, INVESTMENTS, LOANS AND GUARANTY OBLIGATIONS. The
Borrower will not, and will not permit any of its Subsidiaries to, (1) lend
money or credit or make advances to any person, (2) purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, or other investment in, any person, (3) create, acquire
or hold any Subsidiary, (4) be or become a party to any joint venture or
partnership, or (5) be or become obligated under any Guaranty Obligations (other
than those created in favor of the Lenders pursuant to the Credit Documents),
EXCEPT:
(a) the Borrower or any of its Subsidiaries may invest in cash
and Cash Equivalents;
(b) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the normal course
of business;
(c) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;
(d) investments acquired by the Borrower or any of its
Subsidiaries (i) in exchange for any other investment held by the
Borrower or any such Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other investment, or (ii) as a result of a foreclosure by the
Borrower or any of its Subsidiaries with respect to any secured
investment or other transfer of title with respect to any secured
investment in default;
(e) loans and advances to employees for business-related
travel expenses, moving expenses, costs of replacement homes, business
machines or supplies, automobiles and other similar expenses, in each
case incurred in the ordinary course of business, shall be permitted;
(f) existing investments in any Subsidiaries (and any
increases thereof attributable to increases in retained earnings), and
existing loans and advances to any Subsidiary;
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(g) to the extent not permitted by the foregoing clauses, the
existing loans, advances, investments and guarantees described on Annex
V hereto;
(h) any unsecured Guaranty Obligations permitted by section
9.4;
(i) investments of the Borrower and its Subsidiaries in Hedge
Agreements;
(j) loans and advances by any Subsidiary of the Borrower to
the Borrower, PROVIDED that the Indebtedness represented thereby
constitutes Subordinated Indebtedness;
(k) to the extent not permitted by the foregoing clauses,
loans and advances by the Borrower or by any Subsidiary of the Borrower
to, or other investments in, any Subsidiary of the Borrower which is
(i) a Subsidiary Guarantor, (ii) a Wholly-Owned Subsidiary, and (iii)
not a Foreign Subsidiary;
(iv) to the extent not permitted by the foregoing clauses,
loans and advances to, and investments in, any Foreign Subsidiary, made
after March 31, 1998, PROVIDED that the cumulative aggregate amount
thereof which are so made and outstanding at any time shall not exceed
an aggregate of $10,000,000, taking into account the repayment of any
loans or advances to such Foreign Subsidiaries;
(l) to the extent not permitted by the foregoing clauses,
loans and advances by any Subsidiary of the Borrower which is not a
Subsidiary Guarantor to, or other investments by any such Subsidiary
in, any other Subsidiary of the Borrower which is a Wholly-Owned
Subsidiary;
(m) the Acquisitions permitted by section 9.2;
(n) loans, advances and investments of any person which are
outstanding at the time such person becomes a Subsidiary of the
Borrower as a result of an Acquisition permitted by section 9.2, but
not any increase in the amount thereof; and
(o) any other loans, advances, investments (whether in the
form of cash or contribution of property, and if in the form of a
contribution of property, such property shall be valued for purposes of
this clause at the fair value thereof as reasonably determined by the
Borrower), including, without limitation, in or to or for the benefit
of, Subsidiaries, joint ventures, or other persons, not otherwise
permitted by the foregoing clauses, made after the end of the most
recent fiscal quarter of the Borrower for which financial statements
were furnished to the Lenders prior to the Effective Date (such loans,
advances and investments, collectively, "BASKET INVESTMENTS"), PROVIDED
that (i) at the time of making any such Basket Investment no Event of
Default shall have occurred and be continuing, or would result
therefrom, and (ii) the maximum cumulative amount of Basket Investments
which are so made and outstanding at any time shall not exceed an
aggregate of $5,000,000, taking into account the repayment of any loans
or advances comprising such Basket Investments.
9.6. DIVIDENDS, ETC. The Borrower will not (x) directly or indirectly
declare, order, pay or make any dividend (other than dividends payable solely in
capital stock of the Borrower) or other distribution on or in respect of any
capital stock of any class of the Borrower, whether by reduction of capital or
otherwise, or (y) directly or indirectly make, or permit any of its Subsidiaries
to directly or indirectly make, any purchase, redemption, retirement or other
acquisition of any capital stock of any class of the Borrower (other than for a
consideration consisting solely of capital stock of the same class of the
Borrower) or of any warrants, rights or options to acquire or any securities
convertible into or exchangeable for any capital stock of the Borrower, UNLESS,
immediately prior to and immediately after giving effect to any such action, (i)
no Default under section 10.1(a) or Event of Default shall have occurred and be
continuing, and (ii) the Borrower is in compliance with section 9.7.
9.7. MINIMUM CONSOLIDATED NET WORTH. The Borrower will not permit its
Consolidated Net Worth at any time to be less than the amount (which amount
shall be promptly identified in a writing signed by the Borrower and the
Administrative Agent) which is 90% of the Borrower's Consolidated Net Worth at
March 31, 1998, adjusted to give PRO FORMA effect to the completion of the IPO
and to the effect of the amortization or write-off of deferred financing costs
and charges for prepayment premiums or penalties (in an aggregate pre-tax amount
not more than $5,500,000) incident to the
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redemption, retirement or refinancing of Indebtedness contemplated to be made
out of the proceeds of the IPO and the Term Loans, EXCEPT that (i) effective as
of the end of the Borrower's fiscal quarter ended on or nearest to June 30,
1998, and as of the end of each fiscal quarter thereafter, the foregoing amount
(as it may from time to time be increased as herein provided), shall be
increased by 50% of the Consolidated Net Income of the Borrower and its
Subsidiaries for the fiscal quarter ended on such date, if any, as determined in
conformity with GAAP (there being no reduction in the case of any such
Consolidated Net Income which reflects a deficit), (ii) the foregoing amount (as
it may from time to time be increased as herein provided), shall be increased by
an amount equal to 100% of the cash proceeds (net of underwriting discounts and
commissions and other customary fees and costs associated therewith) from any
sale or issuance of equity by the Borrower after March 31, 1998 (other than the
IPO (including the over-allotment option) and any sale or issuance to management
or employees pursuant to employee benefit plans of general application), and
(iii) the foregoing amount (as it may from time to time be increased as herein
provided), shall be increased by an amount equal to 100% of the increase in
Consolidated Net Worth attributable to the issuance of common stock or other
equity interests subsequent to March 31, 1998 as consideration in any
Acquisitions permitted under section 9.2.
9.8. CONSOLIDATED TOTAL DEBT/CONSOLIDATED EBITDA RATIO. The Borrower
will not at any time permit the ratio of (i) the amount of its Consolidated
Total Debt at such time to (ii) its Consolidated EBITDA for its Testing Period
most recently ended, to exceed 3.80 to 1.00 at any time on or prior to December
30, 1998, or 3.50 to 1.00 at any time thereafter.
9.9. INTEREST COVERAGE RATIO. The Borrower will not permit its Interest
Coverage Ratio for the Testing Period ended June 30, 1998, or for any Testing
Period ended thereafter, to be less than 2.00 to 1.00.
9.10. LIMITATION ON CERTAIN RESTRICTIVE AGREEMENTS. The Borrower will
not, and will not permit any of its Subsidiaries to, directly or indirectly,
enter into, incur or permit to exist or become effective, any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or suffer to exist
any Lien upon any of its property or assets as security for Indebtedness, or (b)
the ability of any such Subsidiary to pay dividends or make any other
distributions on its capital stock or any other interest or participation in its
profits owned by the Borrower or any Subsidiary of the Borrower, or pay any
Indebtedness owed to the Borrower or a Subsidiary of the Borrower, or to make
loans or advances to the Borrower or any of the Borrower's other Subsidiaries,
or transfer any of its property or assets to the Borrower or any of the
Borrower's other Subsidiaries, EXCEPT for such restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest, (iv) customary provisions restricting
assignment of any licensing agreement entered into in the ordinary course of
business, (v) customary provisions restricting the transfer or further
encumbering of assets subject to Liens permitted under section 9.3 (b) or (c),
(vi) restrictions contained in the Existing Indebtedness Agreements as in effect
on the Effective Date (and any similar restrictions contained in any agreement
governing any refinancing or refunding thereof not prohibited by this
Agreement), (vii) customary restrictions affecting only a Subsidiary of the
Borrower under any agreement or instrument governing any of the Indebtedness of
a Subsidiary permitted pursuant to 9.4, (viii) restrictions affecting any
Foreign Subsidiary of the Borrower under any agreement or instrument governing
any Indebtedness of such Foreign Subsidiary permitted pursuant to 9.4, and
customary restrictions contained in "comfort" letters and guarantees of any such
Indebtedness, (ix) any document relating to Indebtedness secured by a Lien
permitted by section 9.3, insofar as the provisions thereof limit grants of
junior liens on the assets securing such Indebtedness, and (x) any operating
lease or Capital Lease, insofar as the provisions thereof limit grants of a
security interest in, or other assignments of, the related leasehold interest to
any other person.
9.11. PREPAYMENTS AND REFINANCINGS OF OTHER DEBT, ETC. The Borrower
will not, and will not permit any of its Subsidiaries to, make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment or
redemption or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purpose of paying when due) or exchange of, or refinance or refund, any
Indebtedness of the Borrower or its Subsidiaries which has an outstanding
principal balance (or Capitalized Lease Obligation, in the case of a Capital
Lease) greater than $1,000,000 (other than the Obligations and intercompany
loans and advances among the Borrower and its Subsidiaries); PROVIDED that the
Borrower or any Subsidiary may refinance or refund any such Indebtedness if the
aggregate principal amount thereof (or Capitalized Lease Obligation, in the case
of a Capital Lease) is not increased and the weighted average life to maturity
thereof (computed in accordance with standard financial practice) is not reduced
by more than 10%; and PROVIDED, FURTHER, that the Borrower may in any event
complete the refinancings, redemptions, prepayments and retirements of
Indebtedness contemplated by section 6.1 and the other
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transactions described under "Certain Transactions--Transactions Concurrent with
the Offering" in the Registration Statement.
9.12. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction or series of transactions
with any Affiliate (other than, in the case of the Borrower, any Subsidiary, and
in the case of a Subsidiary, the Borrower or another Subsidiary) other than in
the ordinary course of business of and pursuant to the reasonable requirements
of the Borrower's or such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary than would obtain in
a comparable arm's-length transaction with a person other than an Affiliate,
EXCEPT (i) sales of goods to an Affiliate for use or distribution outside the
United States which in the good faith judgment of the Borrower complies with any
applicable legal requirements of the Code, or (ii) agreements and transactions
with and payments to officers, directors and shareholders which are either (A)
entered into in the ordinary course of business and not prohibited by any of the
provisions of this Agreement, or (B) entered into outside the ordinary course of
business, approved by the directors or shareholders of the Borrower, and not
prohibited by any of the provisions of this Agreement.
9.13. PLAN TERMINATIONS, MINIMUM FUNDING, ETC. The Borrower will not,
and will not permit any ERISA Affiliate to, (i) terminate any Plan or Plans so
as to result in liability of the Borrower or any ERISA Affiliate to the PBGC in
excess of, in the aggregate, the amount which is equal to the greater of (x)
$3,000,000, or (y) 5% of the Borrower's Consolidated Net Worth as of the date of
the then most recent financial statements furnished to the Lenders pursuant to
the provisions of this Agreement, (ii) permit to exist one or more events or
conditions which reasonably present a material risk of the termination by the
PBGC of any Plan or Plans with respect to which the Borrower or any ERISA
Affiliate would, in the event of such termination, incur liability to the PBGC
in excess of such amount in the aggregate, or (iii) fail to comply with the
minimum funding standards of ERISA and the Code with respect to any Plan.
SECTION 10. EVENTS OF DEFAULT.
10.1. EVENTS OF DEFAULT. Any of the following specified events shall
constitute an Event of Default (each an "EVENT OF DEFAULT"):
(a) PAYMENTS: the Borrower shall (i) default in the payment
when due of any principal of the Loans or any reimbursement obligation
in respect of any Unpaid Drawing; or (ii) default, and such default
shall continue for five or more days, in the payment when due of any
interest on the Loans or any Fees or any other amounts owing hereunder
or under any other Credit Document; or
(b) REPRESENTATIONS, ETC.: any representation, warranty or
statement made by the Borrower or any other Credit Party herein or in
any other Credit Document or in any statement or certificate delivered
or required to be delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or
deemed made; or
(c) CERTAIN NEGATIVE COVENANTS: the Borrower shall default in
the due performance or observance by it of any term, covenant or
agreement contained in sections 9.2 through 9.9, inclusive, of this
Agreement; or
(d) OTHER COVENANTS: the Borrower shall default in the due
performance or observance by it of any term, covenant or agreement
contained in this Agreement or any other Credit Document, other than
those referred to in section 10.1(a) or (b) or (c) above, and such
default is not remedied within 30 days after the earlier of (i) an
officer of the Borrower obtaining actual knowledge of such default and
(ii) the Borrower receiving written notice of such default from the
Administrative Agent or the Required Lenders (any such notice to be
identified as a "notice of default " and to refer specifically to this
paragraph); or
(e) CROSS DEFAULT UNDER OTHER AGREEMENTS: the Borrower or any
of its Subsidiaries shall (i) default in any payment with respect to
any Indebtedness (other than the Obligations) owed to any Lender, or
having an unpaid principal amount of $2,000,000 or greater, and such
default shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness,
or (ii) default in the
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observance or performance of any agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto (and all grace periods
applicable to such observance, performance or condition shall have
expired), or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause any such Indebtedness to
become due prior to its stated maturity; or any such Indebtedness of
the Borrower or any of its Subsidiaries shall be declared to be due and
payable, or shall be required to be prepaid (other than by a regularly
scheduled required prepayment or redemption, prior to the stated
maturity thereof); or
(f) OTHER CREDIT DOCUMENTS: the Subsidiary Guaranty (once
executed and delivered) shall cease for any reason (other than
termination in accordance with its terms) to be in full force and
effect; or any Credit Party shall default in any payment obligation
thereunder; or any Credit Party shall default in any material respect
in the due performance and observance of any other obligation
thereunder and such default shall continue unremedied for a period of
at least 30 days after notice by the Administrative Agent or the
Required Lenders; or any Credit Party shall (or seek to) disaffirm or
otherwise limit its obligations thereunder otherwise than in strict
compliance with the terms thereof; or
(g) JUDGMENTS: one or more judgments or decrees shall be
entered against the Borrower and/or any of its Subsidiaries involving a
liability (other than a liability covered by insurance, as to which the
carrier has adequate claims paying ability and has not reserved its
rights) of $1,000,000 or more in the aggregate for all such judgments
and decrees for the Borrower and its Subsidiaries, and any such
judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days (or such longer period, not in
excess of 60 days, during which enforcement thereof, and the filing of
any judgment lien, is effectively stayed or prohibited) from the entry
thereof; or
(h) BANKRUPTCY, ETC.: the Borrower or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the "BANKRUPTCY CODE");
or an involuntary case is commenced against the Borrower or any of its
Material Subsidiaries and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed
for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Material Subsidiaries; or the Borrower or
any of its Material Subsidiaries commences (including by way of
applying for or consenting to the appointment of, or the taking of
possession by, a rehabilitator, receiver, custodian, trustee,
conservator or liquidator (collectively, a "CONSERVATOR") of itself or
all or any substantial portion of its property) any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency, liquidation, rehabilitation,
conservatorship or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Material
Subsidiaries; or any such proceeding is commenced against the Borrower
or any of its Material Subsidiaries to the extent such proceeding is
consented by such person or remains undismissed for a period of 60
days; or the Borrower or any of its Material Subsidiaries is
adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or the Borrower
or any of its Material Subsidiaries suffers any appointment of any
conservator or the like for it or any substantial part of its property
which continues undischarged or unstayed for a period of 60 days; or
the Borrower or any of its Material Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate (or similar
organizational) action is taken by the Borrower or any of its Material
Subsidiaries for the purpose of effecting any of the foregoing; or
(i) ERISA: (i) any of the events described in clauses (i)
through (viii) of section 8.1(f) shall have occurred; or (ii) there
shall result from any such event or events the imposition of a lien,
the granting of a security interest, or a liability or a material risk
of incurring a liability; and (iii) any such event or events or any
such lien, security interest or liability, individually, and/or in the
aggregate, in the opinion of the Required Lenders, has had, or could
reasonably be expected to have, a Material Adverse Effect.
10.2. ACCELERATION, ETC. Upon the occurrence of any Event of Default,
and at any time thereafter, if any Event of Default shall then be continuing,
the Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of the Administrative
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Agent or any Lender to enforce its claims against the Borrower (PROVIDED that,
if an Event of Default specified in section 10.1(h) shall occur with respect to
the Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans, all Unpaid
Drawings and all obligations owing hereunder and thereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; and (iv) direct the Borrower to pay (and the Borrower
hereby agrees that on receipt of such notice or upon the occurrence of an Event
of Default with respect to the Borrower under section 10.1(h), it will pay) to
the Administrative Agent an amount of cash equal to the aggregate Stated Amount
of all Letters of Credit then outstanding (such amount to be held as security
for the Borrower's (and any Subsidiary which is an account party) reimbursement
obligations in respect thereof).
10.3. APPLICATION OF LIQUIDATION PROCEEDS. All monies received by the
Administrative Agent or any Lender from the exercise of remedies hereunder or
under the other Credit Documents or under any other documents relating to this
Agreement shall, unless otherwise required by the terms of the other Credit
Documents or by applicable law, be applied as follows:
(i) FIRST, to the payment of all expenses (to the extent not
paid by the Borrower) incurred by the Administrative Agent and the
Lenders in connection with the exercise of such remedies, including,
without limitation, all reasonable costs and expenses of collection,
attorneys' fees, court costs and any foreclosure expenses;
(ii) SECOND, to the payment PRO RATA of interest then accrued
on the outstanding Loans;
(iii) THIRD, to the payment PRO RATA of any fees then accrued
and payable to the Administrative Agent, any Letter of Credit Issuer or
any Lender under this Agreement in respect of the Loans or the Letter
of Credit Outstandings;
(iv) FOURTH, to the payment PRO RATA of (A) the principal
balance then owing on the outstanding Loans, and (B) the Stated Amount
of the Letter of Credit Outstandings (to be held and applied by the
Administrative Agent as security for the reimbursement obligations in
respect thereof);
(v) FIFTH, to the payment to the Lenders of any amounts then
accrued and unpaid under sections 2.10, 2.11, 3.5 and 5.5 hereof, and
if such proceeds are insufficient to pay such amounts in full, to the
payment of such amounts PRO RATA;
(vi) SIXTH, to the payment PRO RATA of all other amounts owed
by the Borrower to the Administrative Agent, to any Letter of Credit
Issuer or any Lender under this Agreement or any other Credit Document,
and if such proceeds are insufficient to pay such amounts in full, to
the payment of such amounts PRO RATA; and
(vii) FINALLY, any remaining surplus after all of the
Obligations have been paid in full, to the Borrower or to whomsoever
shall be lawfully entitled thereto.
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SECTION 11. THE ADMINISTRATIVE AGENT.
11.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints KeyBank as Administrative Agent to act as specified herein and in the
other Credit Documents, and each such Lender hereby irrevocably authorizes
KeyBank as the Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Credit Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent agrees to act as such upon the express conditions
contained in this section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein or in the other
Credit Documents, nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
The provisions of this section 11 are solely for the benefit of the
Administrative Agent, and the Lenders, and the Borrower and its Subsidiaries
shall not have any rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this Agreement, the
Administrative Agent shall act solely as agent of the Lenders and does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for the Borrower or any of its Subsidiaries.
11.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Credit Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by section 11.3.
11.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any
of its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such person under or in connection with this Agreement (except
for its or such person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or of its Subsidiaries or any
of their respective officers contained in this Agreement, any other Credit
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for any failure
of the Borrower or any Subsidiary of the Borrower or any of their respective
officers to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrower or any of its Subsidiaries. The Administrative Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any Credit
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents
in connection herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default.
11.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message, statement, order or
other document or conversation believed by it, in good faith, to be genuine and
correct and to have been signed, sent or made by the proper person or persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower or any of its Subsidiaries), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Lenders (or
all of the Lenders, as to any matter which, pursuant to section 12.12, can only
be effectuated with the consent of all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.
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11.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give prompt notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders, PROVIDED that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
11.6. NON-RELIANCE. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates have made any representations or warranties to
it and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent, or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and its Subsidiaries.
The Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, assets, property, financial and other conditions, prospects or
creditworthiness of the Borrower or any of its Subsidiaries which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such ratably according to their
respective General Revolving Loans, Term Loans, Unutilized General Revolving
Commitments and Unutilized Term Loan Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against the
Administrative Agent in its capacity as such in any way relating to or arising
out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted to be taken by the Administrative Agent under or in
connection with any of the foregoing, but only to the extent that any of the
foregoing is not paid by the Borrower, PROVIDED that no Lender shall be liable
to the Administrative Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting solely from the Administrative
Agent's gross negligence or willful misconduct. If any indemnity furnished to
the Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this section 11.7 shall survive the payment of all Obligations.
11.8. THE ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower, its Subsidiaries
and their Affiliates as though not acting as Administrative Agent hereunder.
With respect to the Loans made by it and all Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Agreement
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
11.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as the Administrative Agent upon 20 Business Days' notice to the Lenders
and the Borrower. The Required Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders subject to prior approval by the
Borrowers (such approval not
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to be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall include such successor agent effective upon
its appointment, and the resigning Administrative Agent's rights, powers and
duties as the Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement. After the retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of this
section 11 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
11.10. OTHER AGENTS. Any Lender identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager or any other
corresponding title, other than "Administrative Agent", shall have no right,
power, obligation, liability, responsibility or duty under this Agreement or any
other Credit Document except those applicable to all Lenders as such. Each
Lender acknowledges that it has not relied, and will not rely, on any Lender so
identified in deciding to enter into this Agreement or in taking or not taking
any action hereunder.
SECTION 12. MISCELLANEOUS.
12.1. PAYMENT OF EXPENSES ETC. (a) If there is any Borrowing hereunder,
the Borrower agrees to pay (or reimburse the Administrative Agent and the
Lenders for) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with the negotiation,
preparation, execution and delivery of the Credit Documents and the documents
and instruments referred to therein, the delivery of documents on the Closing
Date pursuant to section 6.1 and the initial Borrowing hereunder, including,
without limitation, the reasonable fees and disbursements of Jones, Day, Reavis
& Pogue, special counsel to the Administrative Agent.
(b) If there is any Borrowing hereunder, the Borrower agrees to pay all
reasonable out-of-pocket costs and expenses of the initial Lender hereunder and
the Syndication Agent in connection with the syndication on or prior to the
Syndication Date of portions of the Term Loan Commitments, General Revolving
Commitments, Term Loans and General Revolving Loans of the initial Lender to
Eligible Transferees who may become additional Lenders hereunder, including,
without limitation, the reasonable fees and disbursements of Jones, Day, Reavis
& Pogue, special counsel to the Administrative Agent and the Syndication Agent.
(c) If the Effective Date occurs, the Borrower agrees to pay (or
reimburse the Administrative Agent and the Lenders for) all reasonable
out-of-pocket costs and expenses of the Administrative Agent and the Lenders in
connection with any amendment, waiver or consent relating to any of the Credit
Documents which is requested by any Credit Party, including, without limitation,
the reasonable fees and disbursements of Jones, Day, Reavis & Pogue, special
counsel to the Administrative Agent.
(d) The Borrower agrees to pay (or reimburse the Administrative Agent
and the Lenders for) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with the enforcement of any
of the Credit Documents or the other documents and instruments referred to
therein, including, without limitation, (i) the reasonable fees and
disbursements of Jones, Day, Reavis & Pogue, special counsel to the
Administrative Agent, and (ii) the reasonable fees and disbursements of any
individual counsel to any Lender (including allocated costs of internal
counsel).
(e) Without limitation of the preceding section 12.1(d), in the event
of the bankruptcy, insolvency, rehabilitation or other similar proceeding in
respect of the Borrower or any of its Subsidiaries, the Borrower agrees to pay
all costs of collection and defense, including reasonable attorneys' fees in
connection therewith and in connection with any appellate proceeding or
post-judgment action involved therein, which shall be due and payable together
with all required service or use taxes.
(f) The Borrower agrees to pay and hold each of the Lenders harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and save each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
or omission (other than to the extent attributable to such Lender) to pay such
taxes.
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(g) The Borrower agrees to indemnify each Lender, its officers,
directors, employees, representatives and agents (collectively, the
"INDEMNITEES") from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses reasonably incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of
(i) any investigation, litigation or other proceeding (whether
or not any Lender is a party thereto) related to the entering into
and/or performance of any Credit Document or the use of the proceeds of
any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, other than any such investigation,
litigation or proceeding arising out of transactions solely between any
of the Lenders or the Administrative Agent, transactions solely
involving the assignment by a Lender of all or a portion of its Loans
and Commitments, or the granting of participations therein, as provided
in this Agreement, or arising solely out of any examination of a Lender
by any regulatory or other governmental authority having jurisdiction
over it, or
(ii) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface
of any Real Property owned, leased or at any time operated by the
Borrower or any of its Subsidiaries, the release, generation, storage,
transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by the Borrower or any of
its Subsidiaries, if the Borrower or any such Subsidiary could have or
is alleged to have any responsibility in respect thereof, the
non-compliance of any such Real Property with foreign, federal, state
and local laws, regulations and ordinances (including applicable
permits thereunder) applicable thereto, or any Environmental Claim
asserted against the Borrower or any of its Subsidiaries, in respect of
any such Real Property,
including, in each case, without limitation, the reasonable documented fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the person to be indemnified or of any other
Indemnitee who is such person or an Affiliate of such person). To the extent
that the undertaking to indemnify, pay or hold harmless any person set forth in
the preceding sentence may be unenforceable because it is violative of any law
or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.2. RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Lender (including, without limitation, by
branches and agencies of such Lender wherever located) to or for the credit or
the account of the Borrower against and on account of the Obligations and
liabilities of the Borrower to such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations the Borrower purchased by such Lender pursuant to section 12.4(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not
such Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
12.3. NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to the
Borrower, at 200 Public Square, Suite 30-5000, Cleveland, Ohio 44114, attention:
Vice President-Finance (facsimile: (216) 861-4546); if to any Lender at its
address specified for such Lender on Annex I hereto; if to the Administrative
Agent, at its Notice Office; or at such other address as shall be designated by
any party in a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, telecopied, or cabled or
sent by overnight courier, and shall be effective when received.
12.4. BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, PROVIDED that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of all the Lenders, and, PROVIDED, FURTHER, that any assignment by a
Lender of its rights and obligations hereunder shall be effected in accordance
with section 12.4(b). Notwithstanding the foregoing, each Lender may at any time
grant participations in any of its rights hereunder or
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under any of the Notes to (x) another Lender that is not a Defaulting Lender or
to an Affiliate of such Lender which is a commercial bank, financial institution
or other "accredited investor" (as defined in SEC Regulation D), and (y) one or
more Eligible Transferees, PROVIDED that in the case of any such participation,
(i) the participant shall not have any rights under this Agreement or any of the
other Credit Documents, including rights of consent, approval or waiver (the
participant's rights against such Lender in respect of such participation to be
those set forth in the agreement executed by such Lender in favor of the
participant relating thereto), (ii) such Lender's obligations under this
Agreement (including, without limitation, its Commitment hereunder) shall remain
unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iv) such Lender shall
remain the holder of any Note for all purposes of this Agreement and (v) the
Borrower, the Administrative Agent, and the other Lenders shall continue to deal
solely and directly with the selling Lender in connection with such Lender's
rights and obligations under this Agreement, and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not sold such
participation, except that the participant shall be entitled to the benefits of
sections 2.10 and 2.11 of this Agreement to the extent that such Lender would be
entitled to such benefits if the participation had not been entered into or
sold, and, PROVIDED FURTHER, that no Lender shall transfer, grant or sell any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (x) extend the final scheduled
maturity, or change the amount or time of Payment of any Scheduled Repayments,
of the Loans in which such participant is participating, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in connection
with a waiver of the applicability of any post-default increase in interest
rates), or reduce the principal amount thereof, or increase such participant's
participating interest in any Commitment over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of any such Commitment) or (y) release any
Credit Party from its obligations under the Subsidiary Guaranty except strictly
in accordance with the terms of the Credit Documents, or (z) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may assign all or a
fixed portion of its Loans and/or Commitment, and its rights and obligations
hereunder, which does not have to be PRO RATA among the Facilities, to another
Lender that is not a Defaulting Lender, or to an Affiliate of any Lender
(including itself) and which is not a Defaulting Lender and which is a
commercial bank, financial institution or other "accredited investor" (as
defined in SEC Regulation D), and (y) any Lender may assign all, or if less than
all, a fixed portion, equal to at least $5,000,000 in the aggregate for the
assigning Lender or assigning Lenders, of its Loans and/or Commitment and its
rights and obligations hereunder, which does not have to be PRO RATA among the
Facilities, to one or more Eligible Transferees, each of which assignees shall
become a party to this Agreement as a Lender by execution of an Assignment
Agreement, PROVIDED that (i) the Swing Line Lender may only assign its Swing
Line Revolving Commitment and its Swing Line Revolving Loans as an entirety and
only if the assignee thereof is or becomes a Lender with a General Revolving
Commitment, (ii) in the case of any assignment of a portion of any Loans and/or
Commitment of a Lender, such Lender shall retain a minimum fixed portion of all
Loans and Commitments equal to at least $5,000,000, (iii) at the time of any
such assignment Annex I shall be deemed modified to reflect the Commitments of
such new Lender and of the existing Lenders, (iv) upon surrender of the old
Notes, new Notes will be issued, at the Borrower's expense, to such new Lender
and to the assigning Lender, such new Notes to be in conformity with the
requirements of section 2.6 (with appropriate modifications) to the extent
needed to reflect the revised Commitments, (v) in the case of clause (y) only,
the consent of the Administrative Agent and each Letter of Credit Issuer shall
be required in connection with any such assignment (which consent shall not be
unreasonably withheld or delayed), and (vi) the Administrative Agent shall
receive at the time of each such assignment, from the assigning or assignee
Lender, the payment of a non-refundable assignment fee of $3,500 and, PROVIDED
FURTHER, that such transfer or assignment will not be effective until recorded
by the Administrative Agent on the Lender Register maintained by it as provided
herein. To the extent of any assignment pursuant to this section 12.4(b) the
assigning Lender shall be relieved of its obligations hereunder with respect to
its assigned Commitments. At the time of each assignment pursuant to this
section 12.4(b) to a person which is not already a Lender hereunder and which is
not a United States person (as such term is defined in section 7701(a)(30) of
the Code) for Federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 5.5(b)(ii) Certificate)
described in section 5.5(b). To the extent that an assignment of all or any
portion of a Lender's Commitment and related outstanding Obligations pursuant to
this section 12.4(b) would, at the time of such assignment, result in increased
costs under section 2.10 from those being charged by the respective assigning
Lender prior to such assignment, then the Borrower shall not be obligated to pay
such increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment). Nothing in this section 12.4(b) shall
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prevent or prohibit any Lender from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Lender from such Federal
Reserve Bank.
(c) Notwithstanding any other provisions of this section 12.4, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(d) Each Lender initially party to this Agreement hereby represents,
and each person that became a Lender pursuant to an assignment permitted by this
section 12.4 will, upon its becoming party to this Agreement, represent that it
is a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires loans in the
ordinary course of its business and that it will make or acquire Loans for its
own account in the ordinary course of such business, PROVIDED that subject to
the preceding sections 12.4(a) and (b), the disposition of any promissory notes
or other evidences of or interests in Indebtedness held by such Lender shall at
all times be within its exclusive control.
12.5. NO WAIVER: REMEDIES CUMULATIVE. No failure or delay on the part
of the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between the Borrower and the Administrative Agent or any Lender shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent or any Lender would otherwise have. No notice to or demand on the Borrower
in any case shall entitle the Borrower to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
12.6. PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations, it shall distribute such payment to the Lenders
(other than any Lender that has expressly waived in writing its right to receive
its PRO RATA share thereof) PRO RATA based upon their respective shares, if any,
of the Obligations with respect to which such payment was received. As to any
such payment received by the Administrative Agent prior to 1:00 P.M. (local time
at the Payment Office) in funds which are immediately available on such day, the
Administrative Agent will use all reasonable efforts to distribute such payment
in immediately available funds on the same day to the Lenders as aforesaid.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
Obligations to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount, PROVIDED that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding sections 12.6(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Lenders which are not Defaulting Lenders, as opposed to
Defaulting Lenders.
12.7. CALCULATIONS: COMPUTATIONS. (a) The financial statements to be
furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders); PROVIDED, that if at any time the computations
determining compliance with section 9 utilize accounting principles different
from those utilized in the financial statements furnished to the Lenders, such
computations shall set forth in reasonable detail a description of the
differences and the effect upon such computations.
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(b) All computations of interest on Loans hereunder and all
computations of Facility Fee, Letter of Credit Fees and other Fees hereunder
shall be made on the actual number of days elapsed over a year of 360 days.
12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE
OF OHIO GOVERNS THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the Court of Common Pleas of Cuyahoga County, Ohio, or of the
United States for the Northern District of Ohio, and, by execution and delivery
of this Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Borrower hereby further irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the Borrower at its address for notices pursuant to section
12.3, such service to become effective 30 days after such mailing or at such
earlier time as may be provided under applicable law. Nothing herein shall
affect the right of the Administrative Agent or any Lender to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in section 12.8(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
12.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10. EFFECTIVENESS. This Agreement shall become effective on the date
(the "EFFECTIVE DATE") on which the Borrower and each of the Lenders shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at the Notice Office of the
Administrative Agent or, in the case of the Lenders, shall have given to the
Administrative Agent telephonic (confirmed in writing), written telex or
facsimile transmission notice (actually received) at such office that the same
has been signed and mailed to it.
12.11. HEADINGS DESCRIPTIVE. The headings of the several sections and
other portions of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
12.12. AMENDMENT OR WAIVER. Neither this Agreement nor any terms hereof
or thereof may be changed, waived, discharged or terminated UNLESS such change,
waiver, discharge or termination is in writing signed by the Borrower and (x)
the Required Revolving Lenders, if it affects only the General Revolving
Commitments and/or the General Revolving Loans, (y) the Required Term Lenders,
if it affects only the Term Loan Commitments and/or the Term Loans, or (z) in
all other cases, the Required Lenders, PROVIDED that no such change, waiver,
discharge or termination shall, without the consent of each Lender (other than a
Defaulting Lender) affected thereby,
(a) change the amount or time of payment of the Scheduled
Repayments provided for in section 5.2, extend any maturity date
provided for herein applicable to a Loan or a Commitment, reduce the
rate or extend the
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time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) or Fees
thereon, or reduce the principal amount thereof, or increase the
Commitment of any Lender over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default shall
not constitute a change in the terms of any Commitment of any Lender),
(b) release the Borrower from any obligations as a guarantor
of its Subsidiaries' obligations under any Credit Document,
(c) release any Credit Party from the Subsidiary Guaranty,
except in connection with a transaction permitted by section 9.2(d),
(d) change the definition of the term "Change of Control" or
any of the provisions of section 4.3 or 5.3 which are applicable upon a
Change of Control,
(e) amend, modify or waive any provision of this section
12.12, or section 11.7, 12.1, 12.4, 12.6 or 12.7(b), or any other
provision of any of the Credit Documents pursuant to which the consent
or approval of all Lenders is by the terms of such provision explicitly
required,
(f) reduce the percentage specified in, or otherwise modify,
the definition of Required Term Lenders, Required General Revolving
Lenders or Required Lenders, or
(g) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under this Agreement.
No provision of section 3 or 11 may be amended without the consent of (x) any
Letter of Credit Issuer adversely affected thereby or (y) the Administrative
Agent, respectively.
12.13. SURVIVAL OF INDEMNITIES. All indemnities set forth herein
including, without limitation, in section 2.10, 2.11, 3.5, 11.7 or 12.1 shall
survive the execution and delivery of this Agreement and the making and
repayment of Loans.
12.14. DOMICILE OF LOANS. Each Lender may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Lender, PROVIDED that the Borrower shall not be responsible for costs arising
under section 2.10 resulting from any such transfer (other than a transfer
pursuant to section 2.12) to the extent not otherwise applicable to such Lender
prior to such transfer.
12.15. CONFIDENTIALITY. Each Lender shall hold all non-public
information obtained pursuant to the requirements of this Agreement in
accordance with its customary procedure for handling confidential information of
this nature and in accordance with safe and sound banking practices.
Notwithstanding the foregoing, any Lender may in any event make disclosures of,
and furnish copies of such information (i) to another Lender; (ii) when
reasonably required by any BONA FIDE transferee or participant in connection
with the contemplated transfer of any Loans or Commitment or participation
therein (PROVIDED that each such prospective transferee and/or participant shall
execute an agreement for the benefit of the Borrower with such prospective
transferor Lender and/or participant containing provisions substantially
identical to those contained in this section 12.15); (iii) to its parent
corporation or corporations, and to its and their auditors and attorneys; and
(iv) as required or requested by any governmental agency or representative
thereof or pursuant to legal process, PROVIDED that, unless specifically
prohibited by applicable law or court order, each Lender shall notify the
Borrower of any request by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information. In no event
shall any Lender be obligated or required to return any materials furnished by
or on behalf of the Borrower or any of its Subsidiaries. The Borrower hereby
agrees that the failure of a Lender to comply with the provisions of this
section 12.15 shall not relieve the Borrower of any of the obligations to such
Lender under this Agreement and the other Credit Documents.
12.16. LENDER REGISTER. The Borrower hereby designates the
Administrative Agent to serve as its agent, solely for purposes of this section
12.16, to maintain a register (the "LENDER REGISTER") on or in which it will
record the names and addresses of the Lenders, and the Commitments from time to
time of each of the Lenders, the Loans made to the Borrower
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by each of the Lenders and each repayment and prepayment in respect of the
principal amount of such Loans of each such Lender. Failure to make any such
recordation, or (absent manifest error) any error in such recordation, shall not
affect the Borrower's obligations in respect of such Loans. With respect to any
Lender, the transfer of the Commitment of such Lender and the rights to the
principal of, and interest on, any Loan made pursuant to such Commitment shall
not be effective until such transfer is recorded on the Lender Register
maintained by the Administrative Agent with respect to ownership of such
Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitments and Loans shall be recorded by the Administrative Agent on the
Lender Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment Agreement pursuant to section
12.4(b). The Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, asserted against or incurred by the Administrative
Agent in performing its duties under this section 12.16, except to the extent
attributable to the gross negligence or wilful misconduct of the Administrative
Agent. The Lender Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
12.17. LIMITATIONS ON LIABILITY OF THE LETTER OF CREDIT ISSUERS. The
Borrower assumes all risks of the acts or omissions of any beneficiary or
transferee of any Letter of Credit with respect to its use of such Letters of
Credit. Neither any Letter of Credit Issuer nor any of its officers or directors
shall be liable or responsible for: (a) the use which may be made of any Letter
of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of documents,
or of any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by a
Letter of Credit Issuer against presentation of documents that do not comply
with the terms of a Letter of Credit, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, EXCEPT that the Borrower (or a Subsidiary which is the account party
in respect of the Letter of Credit in question) shall have a claim against a
Letter of Credit Issuer, and a Letter of Credit Issuer shall be liable to the
Borrower (or such Subsidiary), to the extent of any direct, but not
consequential, damages suffered by the Borrower (or such Subsidiary) which the
Borrower (or such Subsidiary) proves were caused by (i) such Letter of Credit
Issuer's willful misconduct or gross negligence in determining whether documents
presented under a Letter of Credit comply with the terms of such Letter of
Credit or (ii) such Letter of Credit Issuer's willful failure to make lawful
payment under any Letter of Credit after the presentation to it of documentation
strictly complying with the terms and conditions of such Letter of Credit. In
furtherance and not in limitation of the foregoing, a Letter of Credit Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation.
12.18. GENERAL LIMITATION OF LIABILITY. No claim may be made by the
Borrower, any Lender, the Administrative Agent, any Letter of Credit Issuer or
any other person against the Administrative Agent, any Letter of Credit Issuer,
or any other Lender or the Affiliates, directors, officers, employees, attorneys
or agents of any of them for any damages other than actual compensatory damages
in respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement or
any of the other Credit Documents, or any act, omission or event occurring in
connection therewith; and each of the Borrower, each Lender, the Administrative
Agent and each Letter of Credit Issuer hereby, to the fullest extent permitted
under applicable law, waives, releases and agrees not to sue or counterclaim
upon any such claim for any special, consequential or punitive damages, whether
or not accrued and whether or not known or suspected to exist in its favor.
12.19. NO DUTY. All attorneys, accountants, appraisers, consultants and
other professional persons (including the firms or other entities on behalf of
which any such person may act) retained by the Administrative Agent or any
Lender with respect to the transactions contemplated by the Credit Documents
shall have the right to act exclusively in the interest of the Administrative
Agent or such Lender, as the case may be, and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to the Borrower, to any of its Subsidiaries, or to any other person,
with respect to any matters within the scope of such representation or related
to their activities in connection with such representation.
12.20. LENDERS AND AGENT NOT FIDUCIARY TO BORROWER, ETC. The
relationship among the Borrower and its Subsidiaries, on the one hand, and the
Administrative Agent, each Letter of Credit Issuer and the Lenders, on the other
hand, is solely that of debtor and creditor, and the Administrative Agent, each
Letter of Credit Issuer and the Lenders have no fiduciary or other special
relationship with the Borrower and its Subsidiaries, and no term or provision of
any Credit
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Document, no course of dealing, no written or oral communication, or other
action, shall be construed so as to deem such relationship to be other than
that of debtor and creditor.
12.21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties herein shall survive the making of Loans and the issuance of
Letters of Credit hereunder, the execution and delivery of this Agreement, the
Notes and the other documents the forms of which are attached as Exhibits
hereto, the issue and delivery of the Notes, any disposition thereof by any
holder thereof, and any investigation made by the Administrative Agent or any
Lender or any other holder of any of the Notes or on its behalf. All statements
contained in any certificate or other document delivered to the Administrative
Agent or any Lender or any holder of any Notes by or on behalf of the Borrower
or of its Subsidiaries pursuant hereto or otherwise specifically for use in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder, made as of the
respective dates specified therein or, if no date is specified, as of the
respective dates furnished to the Administrative Agent or any Lender.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
HAWK CORPORATION
By: /s/ Thomas A. Gilbride
-----------------------------------------
Vice President-Finance
KEYBANK NATIONAL ASSOCIATION,
individually as a Lender, a Letter of Credit
Issuer and as Administrative Agent
By: /s/ Thomas J. Purcell
----------------------------------------
Vice President
67
<PAGE> 73
ANNEX I
INFORMATION AS TO LENDERS
<TABLE>
<CAPTION>
- ---------------------- ------------------ ---------------------------------------- ---------------------------------
NAME OF LENDER COMMITMENT DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE
- ---------------------- ------------------ ---------------------------------------- ---------------------------------
<S> <C> <C> <C>
KeyBank National KeyBank National Association KeyBank National Association
Association GENERAL 127 Public Square 127 Public Square
REVOLVING Cleveland, Ohio 44114 Cleveland, Ohio 44114
COMMITMENT:
PRIMARY CONTACT:
$50,000,000 Thomas J. Purcell
Vice President
SWING LINE Telephone: (216) 689-4439
REVOLVING Facsimile: (216) 689-4981
COMMITMENT:
CONTACT FOR BORROWINGS, PAYMENTS, ETC.:
$5,000,000 Diane Cox
Telephone: (216) 689-4450
TERM LOAN Facsimile: (216) 689-4981
COMMITMENT:
WIRING INFORMATION:
$35,000,000 ABA No. 041 001 039
Ref.: Hawk Corporation
Attention: Commercial Loan Operations
- ---------------------- ------------------ ---------------------------------------- ---------------------------------
</TABLE>
<PAGE> 74
ANNEX II
INFORMATION AS TO SUBSIDIARIES
(as of May 1, 1998)
<TABLE>
<CAPTION>
- -------------------------------------------------- ------------------ ------------------ ---------------------------
PERCENTAGE OF
OUTSTANDING STOCK
NAME OF TYPE OF JURISDICTION OR OTHER EQUITY
SUBSIDIARY ORGANIZATION WHERE INTERESTS OWNED
ORGANIZED (INDICATING WHETHER
OWNED BY THE
BORROWER OR A
SPECIFIED SUBSIDIARY)
- -------------------------------------------------- ------------------ ------------------ ---------------------------
<S> <C> <C> <C>
Friction Products Co. corporation Ohio Borrower--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
S.K. Wellman Corp. corporation Delaware S. K. Wellman Holdings,
Inc.--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
Helsel, Inc. corporation Delaware Borrower--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
Logan Metal Stampings, Inc. corporation Ohio Borrower--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
Hutchinson Products Corporation corporation Delaware Borrower--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
Sinterloy Corporation corporation Delaware Borrower--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
Hawk Brake, Inc. corporation Ohio Friction Products
Co.--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
S. K. Wellman Holdings, Inc. corporation Delaware Borrower--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
Wellman Friction Products U.K. Corp. corporation Delaware S. K. Wellman Holdings,
Inc.--100%
- -------------------------------------------------- ------------------ ------------------ ---------------------------
S. K. Wellman S.p.A. company Italy 95% by S. K. Wellman
Holdings, Inc. and 5% by
S. K. Wellman Corp.
- -------------------------------------------------- ------------------ ------------------ ---------------------------
The S. K. Wellman Company of Canada Limited corporation Ontario 100% by S. K. Wellman
Corp.
- -------------------------------------------------- ------------------ ------------------ ---------------------------
</TABLE>
<PAGE> 75
ANNEX III
DESCRIPTION OF EXISTING INDEBTEDNESS
Senior Notes $ 100,000,000 (1)
Senior Subordinated Notes $ 27,188,000 (2)
Hutchinson acquisition notes $ 500,000
Other $ 3,987,000 (3)
- --------------------------
(1) Of this amount, $35,000,000 to be refinanced out of the IPO.
The Senior Notes are guaranteed by Subsidiaries of the Borrower.
(2) To be retired out of the proceeds of a Borrowing under the
Credit Agreement.
(3) Includes secured promissory note (the "Helsel Note") in the
original principal amount of $500,000 payable to Helco, Inc.
<PAGE> 76
ANNEX IV
DESCRIPTION OF EXISTING LIENS
1. Blanket lien securing the Helsel Note referred to in Annex III.
2. Liens on assets of Foreign Subsidiaries securing Existing Indebtedness.
3. Liens arising from the filing or recording of Capital Leases and
operating leases in effect on the Closing Date (including UCC financing
statements filed in connection therewith).
<PAGE> 77
ANNEX V
DESCRIPTION OF EXISTING ADVANCES, LOANS, INVESTMENTS AND GUARANTEES
1. The Senior Notes referred to in Annex III are guaranteed by various
Subsidiaries of the Borrower.
2. Existing loans to Messrs. Norman C. Harbert and Ronald E. Weinberg; and
others, which are described under "Certain Transactions" in the
Registration Statement.
<PAGE> 78
ANNEX VI
DESCRIPTION OF LETTERS OF CREDIT DEEMED ISSUED UNDER
THE CREDIT AGREEMENT
----None----
<PAGE> 79
EXHIBIT A-1
TERM NOTE
$_______________ Cleveland, Ohio
_______ , 1998
FOR VALUE RECEIVED, the undersigned HAWK CORPORATION, a Delaware
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of _________________________ (the "LENDER"),
in lawful money of the United States of America in immediately available funds,
at the Payment Office (such term and certain other terms used herein without
definition shall have the meanings ascribed thereto in the Agreement referred to
below) of KeyBank National Association (the "ADMINISTRATIVE AGENT"), on the Term
Loan Maturity Date, the principal sum of ________________ DOLLARS ($ ) or, if
less, the then unpaid principal amount of all Term Loans made by the Lender to
the Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount of each Term Loan made by the Lender to the Borrower in like money at
said office from the date hereof until paid at the rates and at the times
provided in section 2.8 of the Agreement.
The Borrower promises also to pay the unpaid principal amount of each
Term Loan made by the Lender to the Borrower in installments in like money at
said office in the amounts and at the times provided in section 5.2 of the
Agreement.
This Note is one of the Term Notes referred to in the Credit Agreement,
dated as of May 1, 1998, among the Borrower, the financial institutions from
time to time party thereto (including the Lender), and KeyBank National
Association, as Administrative Agent (as from time to time in effect, the
"AGREEMENT"), and is entitled to the benefits thereof and of the other Credit
Documents. As provided in the Agreement, this Note is subject to mandatory
prepayment prior to the Term Loan Maturity Date, in whole or in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
HAWK CORPORATION
By:
------------------------------
Vice President-Finance
<PAGE> 80
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
AMOUNT
OF
DATE AMOUNT TYPE PRINCIPAL UNPAID
OF OF OF INTEREST PAID OR PRINCIPAL MADE
NOTATION LOAN LOAN PERIOD PREPAID BALANCE BY
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
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- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
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- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
</TABLE>
<PAGE> 81
EXHIBIT A-2
GENERAL REVOLVING NOTE
$_______________ Cleveland, Ohio
________ , 1998
FOR VALUE RECEIVED, the undersigned HAWK CORPORATION, a Delaware
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of _________________________ (the "LENDER"),
in lawful money of the United States of America in immediately available funds,
at the Payment Office (such term and certain other terms used herein without
definition shall have the meanings ascribed thereto in the Agreement referred to
below) of KeyBank National Association (the "ADMINISTRATIVE AGENT"), on the
General Revolving Maturity Date, the principal sum of ________________ DOLLARS
($ ) or, if less, the then unpaid principal amount of all General Revolving
Loans made by the Lender to the Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal
amount of each General Revolving Loan made by the Lender to the Borrower in like
money at said office from the date hereof until paid at the rates and at the
times provided in section 2.8 of the Agreement.
This Note is one of the General Revolving Notes referred to in the
Credit Agreement, dated as of May 1, 1998, among the Borrower, the financial
institutions from time to time party thereto (including the Lender), and KeyBank
National Association, as Administrative Agent (as from time to time in effect,
the "AGREEMENT"), and is entitled to the benefits thereof and of the other
Credit Documents. As provided in the Agreement, this Note is subject to
mandatory prepayment prior to the General Revolving Maturity Date, in whole or
in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
HAWK CORPORATION
By:
-----------------------------
Vice President-Finance
<PAGE> 82
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
AMOUNT
OF
DATE AMOUNT TYPE PRINCIPAL UNPAID
OF OF OF INTEREST PAID OR PRINCIPAL MADE
NOTATION LOAN LOAN PERIOD PREPAID BALANCE BY
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
</TABLE>
<PAGE> 83
EXHIBIT A-3
SWING LINE REVOLVING NOTE
$________________ Cleveland, Ohio
________ , 1998
FOR VALUE RECEIVED, the undersigned HAWK CORPORATION, a Delaware
corporation (herein, together with its successors and assigns, the "BORROWER"),
hereby promises to pay to the order of _________________________ (the "LENDER"),
in lawful money of the United States of America in immediately available funds,
at the Payment Office (such term and certain other terms used herein without
definition shall have the meanings ascribed thereto in the Agreement referred to
below) of KeyBank National Association (the "ADMINISTRATIVE AGENT"), the
principal sum of ________________ DOLLARS ($ ) or, if less, the then unpaid
principal amount of all Swing Line Revolving Loans made by the Lender to the
Borrower pursuant to the Agreement. The Borrower will pay the principal amount
of any Swing Line Revolving Loan on the maturity date specified therefor in the
Notice of Borrowing relating thereto, which maturity date shall in no event be
more than 7 days following the date such Swing Line Revolving Loan was made.
The Borrower promises also to pay interest on the unpaid principal
amount of each Swing Line Revolving Loan made by the Lender in like money at
said office from the date hereof until paid at the rates and at the times
provided in section 2.8 of the Agreement.
This Note is one of the Swing Line Revolving Notes referred to in the
Credit Agreement, dated as of May 1, 1998, among the Borrower, the financial
institutions from time to time party thereto (including the Lender), and KeyBank
National Association, as Administrative Agent (as from time to time in effect,
the "AGREEMENT"), and is entitled to the benefits thereof and of the other
Credit Documents (as defined in the Agreement). As provided in the Agreement,
this Note is subject to mandatory prepayment prior to the maturity date of any
Swing Line Revolving Loan, in whole or in part.
In case an Event of Default shall occur and be continuing, the
principal of and accrued interest on this Note may be declared to be due and
payable in the manner and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note. No failure to exercise, or delay in
exercising, any rights hereunder on the part of the holder hereof shall operate
as a waiver of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF OHIO.
HAWK CORPORATION
By:
------------------------------
Vice President-Finance
<PAGE> 84
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
TYPE AMOUNT
OF OF
DATE AMOUNT LOAN/ PRINCIPAL UNPAID
OF OF OR PAID OR PRINCIPAL MADE
NOTATION LOAN INTEREST MATURITY PREPAID BALANCE BY
RATE
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
<S> <C> <C> <C> <C> <C> <C>
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ---------------- ----------------- -------------- ------------- ------------- ------------------ -------------------
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
</TABLE>
<PAGE> 85
EXHIBIT B-1
NOTICE OF BORROWING
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
---------------------------
Re: Notice of Borrowing
under Credit Agreement
----------------------
Ladies and Gentlemen:
The undersigned, Hawk Corporation, a Delaware corporation (the
"BORROWER"), refers to the Credit Agreement, dated as of May 1, 1998 (as amended
from time to time, the "CREDIT AGREEMENT", the terms defined therein being used
herein as therein defined), among the Borrower, the financial institutions from
time to time party thereto (the "LENDERS"), and KeyBank National Association, as
Administrative Agent for such Lenders, and hereby gives you notice, irrevocably,
pursuant to section 2.3(a) of the Credit Agreement, that the undersigned hereby
requests one or more Borrowings under the Credit Agreement, and in that
connection sets forth in the schedule attached hereto the information relating
to each such Borrowing (collectively the "PROPOSED BORROWING") as required by
section 2.3(a) of the Credit Agreement.
The Borrower hereby specifies that the Proposed Borrowing will consist
of Loans as indicated in the schedule attached hereto.
The Borrower hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Credit Documents are
and will be true and correct in all material respects, before and after
giving effect to the Proposed Borrowing and to the application of the
proceeds thereof, as though made on such date, except to the extent
that such representations and warranties expressly relate to an earlier
specified date, in which case such representations and warranties were
true and correct in all material respects as of the date when made; and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof.
Very truly yours,
HAWK CORPORATION
By:
------------------------------
Title:
<PAGE> 86
BORROWING SCHEDULE
PROPOSED BORROWING #1:
<TABLE>
<CAPTION>
- ------------------ --------------- ---------------- --------------- ---------------- --------------- ---------------
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED FACILITY TYPE OF AMOUNT EURODOLLAR
BORROWING LOANS OF LOANS LOANS
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
<S> <C> <C> <C> <C>
Term Loans Prime Rate Loans One Month
______, 19____
General Revolving Eurodollar Loans $____________ Two Months
Loans
Money Market Rate Three Months
Swing Line Revolving Loans with an interest
Loans rate of ___% and a Six Months
maturity of ___ days
[Circle one of [not more than 7 days] [Circle one of
above] [Circle and/or complete one above]
of
above]
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
PROPOSED BORROWING #2:
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED FACILITY TYPE OF AMOUNT EURODOLLAR
BORROWING LOANS OF LOANS LOANS
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
Term Loans Prime Rate Loans One Month
______, 19____
General Revolving Eurodollar Loans $____________ Two Months
Loans
Money Market Rate Three Months
Swing Line Revolving Loans with an interest
Loans rate of ___% and a Six Months
maturity of ___ days
[Circle one of [not more than 7 days] [Circle one of
above] [Circle and/or complete one above]
of
above]
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
</TABLE>
<PAGE> 87
PROPOSED BORROWING #3:
<TABLE>
<CAPTION>
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED FACILITY TYPE OF AMOUNT EURODOLLAR
BORROWING LOANS OF LOANS LOANS
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
<S> <C> <C> <C> <C>
Term Loans Prime Rate Loans One Month
______, 19____
General Revolving Eurodollar Loans $____________ Two Months
Loans
Money Market Rate Three Months
Swing Line Revolving Loans with an interest
Loans rate of ___% and a Six Months
maturity of ___ days
[Circle one of [not more than 7 days] [Circle one of
above] above]
[Circle and/or complete
one of above]
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
PROPOSED BORROWING #4:
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
BUSINESS DAY INTEREST PERIOD
OF AGGREGATE IF LOANS ARE
PROPOSED FACILITY TYPE OF AMOUNT EURODOLLAR
BORROWING LOANS OF LOANS LOANS
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
Term Loans Prime Rate Loans One Month
______, 19____
General Revolving Eurodollar Loans $____________ Two Months
Loans
Money Market Rate Loans Three Months
Swing Line Revolving with an interest rate of
Loans ___% and a maturity of ___ Six Months
days [not more than 7 days]
[Circle one of [Circle one of
above] [Circle and/or complete one above]
of
above]
- ------------------ --------------------------- ---------------------------- -------------- -------------------------
</TABLE>
2
<PAGE> 88
EXHIBIT B-2
NOTICE OF CONVERSION
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
----------------------------
Re: Notice of Conversion
of Outstanding General Revolving Loans
and/or Term Loans under the Credit Agreement
------------------------------------------------
Ladies and Gentlemen:
The undersigned, Hawk Corporation, a Delaware corporation (the
"BORROWER"), refers to the Credit Agreement, dated as of May 1, 1998 (as amended
from time to time, the "CREDIT AGREEMENT", the terms defined therein being used
herein as therein defined), among the Borrower, the financial institutions from
time to time party thereto (the "LENDERS"), and KeyBank National Association, as
Administrative Agent for such Lenders, and hereby gives you notice, irrevocably,
pursuant to section 2.7 of the Credit Agreement, that the undersigned hereby
requests one or more conversions of General Revolving Loans of one Type into
General Revolving Loans of another Type, and/or one or more conversions of Term
Loans of one Type into Term Loans of another Type, pursuant to section 2.7 of
the Credit Agreement, and in that connection sets forth in the schedule attached
hereto the information relating to each such conversion.
Very truly yours,
HAWK CORPORATION
By:
--------------------------
Title:
<PAGE> 89
CONVERSION SCHEDULE
PROPOSED CONVERSION #1
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO LOANS DESCRIBED IN THE SECOND TABLE BELOW]
<TABLE>
<CAPTION>
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS FACILITY TYPE OF LOANS OF LOANS EURODOLLAR LOANS
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
<S> <C> <C> <C> <C>
Term Loan One Month
____, 19__ Facility Prime Rate Loans
$________ Two Months
General Eurodollar Loans
Revolving Three Months
Facility
[Circle One of Six Months
[Circle One of Above]
Above] [Circle one of
above]
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS FACILITY TYPE OF LOANS OF LOANS EURODOLLAR LOANS
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
Term Loan One Month
____, 19__ Facility Prime Rate Loans
$________ Two Months
General Eurodollar Loans
Revolving Three Months
Facility
[Circle One of Six Months
[Circle One of Above]
Above] [Circle one of
above]
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
</TABLE>
<PAGE> 90
PROPOSED CONVERSION #2
[OF THE LOANS DESCRIBED IN THE FIRST TABLE BELOW
INTO LOANS DESCRIBED IN THE SECOND TABLE BELOW]
<TABLE>
<CAPTION>
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
<S> <C> <C> <C> <C>
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS FACILITY TYPE OF LOANS OF LOANS EURODOLLAR LOANS
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
Term Loan One Month
____, 19__ Facility Prime Rate Loans
$________ Two Months
General Eurodollar Loans
Revolving Three Months
Facility
[Circle One of Six Months
[Circle One of Above]
Above] [Circle one of
above]
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
AGGREGATE INTEREST PERIOD
AMOUNT IF LOANS ARE
DATE OF LOANS FACILITY TYPE OF LOANS OF LOANS EURODOLLAR LOANS
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
Term Loan One Month
____, 19__ Facility Prime Rate Loans
$________ Two Months
General Eurodollar Loans
Revolving Three Months
Facility
[Circle One of Six Months
[Circle One of Above]
Above] [Circle one of
above]
- ----------------------- ---------------- ------------------- --------------------- ---------------------------------
</TABLE>
2
<PAGE> 91
EXHIBIT B-3
LETTER OF CREDIT REQUEST
No. ______________(4)
Dated__________(5)
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
127 Public Square
Cleveland, Ohio 44114
Attention: Large Corporate Group
& International Department
_________________________
Ladies and Gentlemen:
The undersigned, Hawk Corporation, a Delaware corporation (the
"BORROWER"), refers to the Credit Agreement, dated as of May 1, 1998 (as
amended, modified or supplemented from time to time, the "CREDIT AGREEMENT", the
capitalized terms defined therein being used herein as therein defined), among
the Borrower, the financial institutions from time to time party thereto (the
"LENDERS"), and KeyBank National Association, as Administrative Agent for such
Lenders.
The Borrower hereby requests that _______, as a Letter of Credit
Issuer, issue a Letter of Credit on ___________, 199_ (the "DATE OF ISSUANCE")
in the aggregate amount of U.S.$__, for the account of ____________________.
The beneficiary of the requested Letter of Credit will be________ ,
(6) and such Letter of Credit will be in support of __________ (7)
and will have a stated termination date of ____________. (8)
The Borrower hereby certifies that after giving effect to the requested
issuance of the Letter of Credit:
(4) Letter of Request Number.
(5) Date of Letter of Request (at least three Business Days prior to the
Date of Issuance or such lesser number as may be agreed by the relevant
Letter of Credit Issuer).
(6) Insert name and address of beneficiary.
(7) Insert description of the supported obligations, name of agreement
and/or the commercial transaction to which this Letter of Credit
Request relates.
(8) Insert last date upon which drafts may be presented (which may not be
beyond the 15th Business Day next preceding the General Revolving
Maturity Date).
<PAGE> 92
(i) $_________ principal amount of General Revolving Loans and
$_________ principal amount of Swing Line Revolving Loans will be
outstanding; and
(ii) the Letter of Credit Outstandings will be $___________.
The Borrower hereby certifies that the following statements are true on
the date hereof, and will be true on the Date of Issuance:
(A) the representations and warranties of the Credit Parties
contained in the Credit Agreement and the other Credit Documents are
and will be true and correct in all material respects, before and after
giving effect to the issuance of the Letter of Credit requested hereby,
as though made on the Date of Issuance, except to the extent that such
representations and warranties expressly relate to an earlier specified
date, in which case such representations and warranties were true and
correct in all material respects when made; and
(B) no Default or Event of Default has occurred and is
continuing, or would result after giving effect to the issuance of the
Letter of Credit requested hereby.
Copies of all documentation with respect to the supported transaction
are attached hereto.
Very truly yours,
HAWK CORPORATION
By:
--------------------------
Title:
<PAGE> 93
EXHIBIT C
----------------------------
FORM OF
SUBSIDIARY GUARANTY
----------------------------
<PAGE> 94
EXHIBIT D
----------------------------
FORM OF
OPINION OF SPECIAL COUNSEL
TO THE
BORROWER
----------------------------
<PAGE> 95
KOHRMAN JACKSON & KRANTZ P.L.L.
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
CLEVELAND, OHIO 44114
216-696-8700
DIRECT DIAL TELECOPIER E-MAIL
736-7204 216-621-6536 [email protected]
May 15, 1998
To the Administrative Agent and
each of the Lenders party
to the Credit Agreement
referred to below
c/o KeyBank National Association
127 Public Square
Cleveland, Ohio 44114
Attn: Large Corporate Group
RE: $85,000,000 CREDIT AGREEMENT WITH HAWK CORPORATION
Dear Ladies and Gentlemen:
We have acted as special counsel to Hawk Corporation, a Delaware
corporation (the "BORROWER"), in connection with (i) the execution and delivery
of the Credit Agreement, dated as of May 1, 1998 (the "CREDIT AGREEMENT"), among
the Borrower, the financial institutions party thereto (the "LENDERS"), and
KeyBank National Association, as Administrative Agent, and (ii) the transactions
contemplated thereby. As used herein, the term "U.S. SUBSIDIARY" or "U.S.
SUBSIDIARIES" refers only to the Subsidiaries identified in Annex II to the
Credit Agreement which are organized under the laws of one of the States of the
United States. Unless otherwise indicated, capitalized terms used herein but not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement. This opinion letter is delivered by us to you at the request
of the Borrower in accordance with the requirements of section 6.1(f) of the
Credit Agreement.
As such special counsel, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
records and matters of law as we have considered necessary as a basis for the
opinions set forth herein, including without limitation the following:
(a) the Credit Agreement;
(b) the Notes delivered today pursuant to the Credit
Agreement; and
<PAGE> 96
(c) the Subsidiary Guaranty.
The documents referred to in clauses (a) through (c) above are herein sometimes
referred to as the "CREDIT DOCUMENTS".
In our examination we have assumed the genuineness of all signatures
(other than as to any representative of a Credit Party), the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. As to questions of fact not
independently verified by us, we have relied, to the extent we deemed
appropriate, upon representations and certificates of officers of the respective
Credit Parties, public officials and other appropriate persons. All assumptions
and statements of reliance as to factual matters herein have been made without
any independent investigation or verification on our part except to the extent
otherwise expressly stated, and we express no opinion with respect to the
subject matter or accuracy of such assumptions or items relied upon. We have
made such investigations of law as we deemed appropriate as a basis for
rendering the opinions expressed below.
We have neither examined nor requested an examination of the indices or
records of any court or governmental or other agency, authority, instrumentality
or entity, nor have we made inquiry of any person or entity, except as expressly
set forth in this opinion letter. In addition, we have not independently
verified or investigated the accuracy or completeness of any factual
information, and because the scope of our examination did not include such
verification, we assume no responsibility for the accuracy or completeness of
any such information.
In opining herein, we have made no independent investigation of the
applicable facts other than a review of (a) information in our files, (b)
representations and certificates of officers of the Borrower, public officials
and other appropriate persons, and (c) warranties and representations as to
certain factual matters contained in the Credit Documents. As used herein, "to
our knowledge" shall mean to the actual knowledge of the lawyers who have been
actively involved in the negotiation of the Credit Documents and the lawyers in
our firm who are the current primary contacts for the Borrower at the firm.
Based upon the foregoing and subject to the qualifications, assumptions
and limitations contained in this opinion letter, we are of the opinion that:
1. CORPORATE STATUS, ETC. Each of the Borrower and its U.S.
Subsidiaries (i) is a validly existing corporation under the laws of
the jurisdiction of its formation and has the corporate power and
authority to own its property and assets and to transact the business
in which it is engaged and presently proposed to engage and (ii) to our
knowledge, is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where it is required to be so
qualified except where the failure to be so qualified would not have a
Material Adverse Effect.
2. SUBSIDIARIES. To our knowledge, Annex II to the Credit
Agreement correctly sets forth each Subsidiary of the Borrower and the
direct and indirect ownership of the Borrower therein.
<PAGE> 97
KOHRMAN JACKSON & KRANTZ P.L.L.
KeyBank National Association
Page 3
May 15, 1998
3. CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has
the corporate or other organizational power and authority to execute,
deliver and carry out the terms and provisions of the Credit Documents
to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and
performance of the Credit Documents to which it is a party.
4. CREDIT DOCUMENTS. Each Credit Party has duly executed and
delivered each Credit Document to which it is a party and each such
Credit Document to which it is a party constitutes the legal, valid and
binding agreement or obligation of such Credit Party enforceable
against such Credit Party in accordance with its terms.
5. NO VIOLATION. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is
a party nor compliance with the terms and provisions thereof, (i) will
contravene any provision of any State of Ohio or United States federal
law, statute, rule, regulation (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System), or, to our knowledge, any order, writ, injunction or
decree of any court or governmental instrumentality applicable to the
Borrower or its properties and assets, (ii) will conflict or result in
any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any
of the property or assets of any Credit Party pursuant to the terms of
any indenture, mortgage, deed of trust, or other material agreement or
other instrument, in each case of which we have knowledge to which any
Credit Party is a party or by which it or any of its property or assets
are bound or to which it may be subject or (iii) will violate any
provision of the charter, by-laws or code of regulations of any Credit
Party.
6. GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any Ohio or United States federal
governmental or public body or authority, or any subdivision thereof,
is required to authorize or is required as a condition to (i) the
execution, delivery and performance by any Credit Party of any Credit
Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any such Credit Document.
7. LITIGATION. To our knowledge, there are no actions, suits
or proceedings pending or threatened with respect to the Borrower or
any of its Subsidiaries that have, or could reasonably be expected to
have, a Material Adverse Effect, or which question the validity or
enforceability of any of the Credit Documents, or of any action to be
taken by any Credit Party pursuant to any of the Credit Documents.
<PAGE> 98
KOHRMAN JACKSON & KRANTZ P.L.L.
KeyBank National Association
Page 4
May 15, 1998
8. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any
of its Subsidiaries is subject to regulation with respect to the
creation or incurrence of Indebtedness under the Investment Company Act
of 1940, as amended, the Interstate Commerce Act, as amended, the
Federal Power Act, as amended, the Public Utility Holding Company Act
of 1935, as amended, or any applicable Ohio state public utility law.
The opinions set forth above are subject to the following
qualifications: (a) the enforceability against any party of any instrument or
obligation referred to in this opinion is subject to the effect of applicable
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or similar laws affecting creditors' rights
generally; (b) the enforceability against any party of any instrument or
obligation referred to in this opinion is subject to general principles of
equity and the discretion of a court in granting equitable remedies (regardless
of whether such enforceability is considered in a proceeding at law or in
equity) and to an implied covenant of good faith and fair dealing; and (c) the
enforceability of certain provisions of the Credit Documents is subject in whole
or in part to the laws (including judicial decisions) of the State of Ohio or
other applicable jurisdictions.
Notwithstanding anything herein to the contrary, we express no opinion
as to: (a) the enforceability of provisions regarding the waiver of various
substantive and procedural rights of the Borrower and Subsidiary Guarantors; (b)
the validity of any indemnification for liabilities under applicable federal or
state laws and regulations relating to securities or by policies underlying such
laws and regulations; (c) the validity and enforceability of any agreement,
covenant or understanding that legal fees may be paid by, or are collectible
from, a defaulting party; or (d) the applicability of fraudulent transfer laws
to the transactions contemplated by the Credit Documents. We understand you have
considered and have satisfied yourself with respect to the applicability of
fraudulent transfer laws.
The foregoing opinions are limited to matters of federal law of the
United States, the laws of the State of Ohio, and the General Corporation Law of
the State of Delaware. We are qualified to practice law only in the State of
Ohio and do not purport to be experts in the laws of any other state other than
the General Corporation Law of the State of Delaware.
We bring to your attention that Byron S. Krantz, a partner of this
firm, is a stockholder, a director and the Secretary of the Borrower and a
director and the Secretary of each of its U.S. Subsidiaries, and that Marc C.
Krantz, a partner of this firm, is the Assistant Secretary of the Borrower and
each of its U.S.
Subsidiaries.
The opinions set forth herein are solely for the use and benefit of the
addressees hereof in connection with the transactions contemplated by the Credit
Documents upon the understanding that we are not hereby assuming any
professional responsibility to any other person whatsoever, and are not to be
quoted in whole or in part or otherwise referred to by you in any documents or
instruments,
<PAGE> 99
KOHRMAN JACKSON & KRANTZ P.L.L.
KeyBank National Association
Page 5
May 15, 1998
or relied upon by any other person or entity without our prior
written consent. The information set forth herein is as of the date of this
opinion letter, and we disclaim any undertaking to advise you of any changes
which thereafter may be brought to our attention.
Very truly yours,
KOHRMAN JACKSON & KRANTZ P.L.L.
By:
----------------------------
Marc C. Krantz, a partner
/mls
<PAGE> 100
EXHIBIT E
----------------------------
FORM OF
ASSIGNMENT AGREEMENT
----------------------------
<PAGE> 101
ASSIGNMENT AGREEMENT
DATE:_____________
Reference is made to the Credit Agreement described in Item 2 of Annex
I annexed hereto (as such Credit Agreement may hereafter be amended, modified or
supplemented from time to time, the "CREDIT AGREEMENT"). Unless defined in Annex
I attached hereto, terms defined in the Credit Agreement are used herein as
therein defined.
_____________ (the "ASSIGNOR") and ______________ (the "ASSIGNEE")
hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified in Item 4 of Annex I (the "ASSIGNED SHARE") of all of
Assignor's outstanding rights and obligations under the Credit Agreement
indicated in Item 4 of Annex I, including, without limitation, all rights and
obligations with respect to the Assigned Share of the Assignor's Commitment and
of the Loans, Unpaid Drawings and the Notes held by the Assignor. After giving
effect to such sale and assignment, the Assignee's Commitment will be as set
forth in Item 4 of Annex I.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any liens or security interests; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant thereto; and (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or the other
Credit Documents or any other instrument or document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is duly authorized
to enter into and perform the terms of this Assignment Agreement; (ii) confirms
that it has received a copy of the Credit Agreement and the other Credit
Documents, together with copies of the financial statements referred to therein
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment Agreement;
(iii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; [and] (v) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a Lender[; and (vi) to the extent legally
entitled to do so, attaches the forms described in section 5.5(b)(ii) of the
Credit Agreement(9).
4. Following the execution of this Assignment Agreement by the Assignor
and the Assignee, an executed original hereof (together with all attachments)
will be delivered to the Administrative Agent. The effective date of this
Assignment Agreement shall be the date of execution hereof by the Assignor, the
Assignee and the consent hereof by the Administrative Agent and the receipt by
the Administrative Agent of the administrative fee referred to in section
12.4(b) of the Credit Agreement, unless otherwise specified in Item 5 of Annex I
hereto (the "SETTLEMENT DATE").
- ---------------------------
(9) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
<PAGE> 102
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
Agreement, have the rights and obligations of a Lender thereunder and under the
other Credit Documents and (ii) the Assignor shall, to the extent provided in
this Assignment Agreement, relinquish its rights and be released from its
obligations under the Credit Agreement and the other Credit Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee shall
be entitled to (x) all interest on the Assigned Share of the Loans at the rates
specified in Item 6 of Annex I, (y) all Facility Fee (if applicable) on the
Assigned Share of the Commitment at the rate specified in Item 7 of Annex I, and
(z) all Letter of Credit Fees (if applicable) on the Assignee's participation in
all Letters of Credit at the rate specified in Item 8 of Annex I hereto, which,
in each case, accrue on and after the Settlement Date, such interest and, if
applicable, Facility Fee and Letter of Credit Fees, to be paid by the
Administrative Agent, upon receipt thereof from the Borrower, directly to the
Assignee. It is further agreed that all payments of principal made by the
Borrower on the Assigned Share of the Loans which occur on and after the
Settlement Date will be paid directly by the Administrative Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the Assignor an
amount specified by the Assignor in writing which represents the Assigned Share
of the principal amount of the respective Loans made by the Assignor pursuant to
the Credit Agreement which are outstanding on the Settlement Date, net of any
closing costs, and which are being assigned hereunder. The Assignor and the
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Settlement Date directly between themselves
on the Settlement Date.
7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
<TABLE>
<CAPTION>
- ----------------------------------------------------------- --------------------------------------------------------
<S> <C>
[NAME OF ASSIGNOR], [NAME OF ASSIGNEE],
as Assignor as Assignee
By:_________________________________ By:_________________________________
Vice President Vice President
- ----------------------------------------------------------- --------------------------------------------------------
Acknowledged and agreed.
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By:_________________________________
Vice President
</TABLE>
<PAGE> 103
ANNEX I
FOR
ASSIGNMENT AND ASSUMPTION AGREEMENT
1. The Borrower: HAWK CORPORATION
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of May 1, 1998, among Hawk
Corporation, the Lenders from time to time party
thereto, and KeyBank National Association, as
Administrative Agent.
3. Date of Assignment Agreement:
--------- ---, -----
4. Amounts (as of date of item #3 above):
<TABLE>
<CAPTION>
- ------------------- ---------------- ------------ --------------- ---------------- ----------------- ---------------
Term Loan Term Loans General General Swing Line Swing Line
Commitment Revolving Revolving Loans Revolving Revolving
Commitment Commitment Loans
- ------------------- ---------------- ------------ --------------- ---------------- ----------------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Aggregate Amount $____ $_____ $_____ $_____ $_____ $_____
for all Lenders
- ------------------- ---------------- ------------ --------------- ---------------- ----------------- ---------------
Assigned Share _____% _____% _____% _____% _____% _____%
- ------------------- ---------------- ------------ --------------- ---------------- ----------------- ---------------
Amount of $_____ $_____ $_____ $_____ $_____ $_____
Assigned Share
- ------------------- ---------------- ------------ --------------- ---------------- ----------------- ---------------
Amount Retained $_____ $_____ $_____ $_____ $_____ $_____
by Assignor
- ------------------- ---------------- ------------ --------------- ---------------- ----------------- ---------------
</TABLE>
5. Settlement Date:
--------- ---, ---
6. Rate of Interest
to the Assignee: As set forth in section 2.8 of
the Credit Agreement (unless otherwise
agreed to by the Assignor and the
Assignee).(10)
- ---------------------------------
(10) The Borrower and the Administrative Agent shall direct the entire amount of
the interest to the Assignee at the rate set forth in section 2.8 of the Credit
Agreement, with the Assignor and Assignee effecting any agreed upon sharing of
interest through payments by the Assignee to the Assignor.
<PAGE> 104
7. Facility
Fee: As set forth in section 4.1(a) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).(11)
8. Letter of
Credit Fees: As set forth in section 4.1(b) of the Credit
Agreement (unless otherwise agreed to by the
Assignor and the Assignee).(12)
9. Notices:
<TABLE>
<CAPTION>
- ----------------------------------------------------------- --------------------------------------------------------
<S> <C>
ASSIGNOR: ASSIGNEE:
Attention:__________________ Attention:__________________
Telephone: Telephone:
Facsimile: Facsimile:
- ----------------------------------------------------------- --------------------------------------------------------
</TABLE>
10. Payment Instructions:
<TABLE>
<CAPTION>
<S> <C>
- ----------------------------------------------------------- --------------------------------------------------------
ASSIGNOR: ASSIGNEE:
ABA No.: ABA No.:
Account No.: Account No.:
Ref.: Hawk Corporation Ref.: Hawk Corporation
Attention:__________________ Attention:__________________
Telephone: Telephone:
</TABLE>
- -------------------------
(11) The Borrower and the Administrative Agent shall direct the entire amount of
the Facility Fee to the Assignee at the rate set forth in section 4.1(a) of the
Credit Agreement, with the Assignor and the Assignee effecting any agreed upon
sharing of Facility Fee through payment by the Assignee to the Assignor.
(12) The Borrower and the Administrative Agent shall direct the entire amount of
the Letter of Credit Fees to the Assignee at the rate set forth in section
4.1(b) of the Credit Agreement, with the Assignor and the Assignee effecting any
agreed upon sharing of the Letter of Credit Fees through payment by the Assignee
to the Assignor.
<PAGE> 105
<TABLE>
<CAPTION>
- ----------------------------------------------------------- --------------------------------------------------------
<S> <C>
Facsimile: Facsimile:
- ----------------------------------------------------------- --------------------------------------------------------
</TABLE>
3
<PAGE> 106
EXHIBIT F
SECTION 5.5(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of May 1,
1998, among Hawk Corporation, the financial institutions party thereto from time
to time, and KeyBank National Association, as Administrative Agent (the "CREDIT
AGREEMENT"). Pursuant to the provisions of section 5.5(b)(ii) of the Credit
Agreement, the undersigned hereby certifies that it is not a "bank" as such term
is used in section 881(c)(3)(A) of the Internal Revenue Code of 1986, as
amended.
[NAME OF BANK]
By:_________________________________
Title:
Dated:__________
<PAGE> 1
Exhibit 10.2
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY, dated as of May 1, 1998 (as amended, modified or
supplemented from time to time, "THIS GUARANTY"), made by each of the
undersigned (each, together with its successors and assigns, a "GUARANTOR" and
collectively, the "GUARANTORS"), with KEYBANK NATIONAL ASSOCIATION, a national
banking association, as Administrative Agent (herein, together with its
successors and assigns in such capacity, the "ADMINISTRATIVE AGENT") for itself
and the other Lenders (defined below), for the benefit of (i) the Administrative
Agent, and (ii) the Lenders from time to time party to the Credit Agreement
referred to below:
PRELIMINARY STATEMENTS:
(1) Except as otherwise defined herein, terms used herein and defined
in the Credit Agreement (as defined below) shall be used herein as therein
defined.
(2) This Guaranty is made pursuant to the Credit Agreement, dated as of
the date hereof (herein, as amended or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Hawk Corporation, a Delaware corporation (herein,
together with its successors and assigns, the "BORROWER"), the financial
institutions named as lenders therein, and KeyBank National Association, as the
Administrative Agent for the Lenders under the Credit Agreement, providing,
among other things, for loans or advances or other extensions of credit to or
for the benefit of the Borrower of up to $85,000,000, with such loans or
advances being evidenced by promissory notes (the "NOTES", such term to include
all notes and other securities issued in exchange therefor or in replacement
thereof).
(3) It is a condition to the making of Loans under the Credit Agreement
that each Guarantor shall have executed and delivered this Guaranty.
(4) Each Guarantor is a direct or indirect Subsidiary of the Borrower
and will obtain benefits from the incurrence of Loans by the Borrower under the
Credit Agreement and, accordingly, desires to execute this Guaranty in order to
satisfy the condition described in the preceding paragraph and to induce the
Lenders to make Loans to the Borrower.
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Guarantor, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor hereby makes the following representations and
warranties to the Administrative Agent and the Lenders and hereby covenants and
agrees with the Administrative Agent and each Lender as follows:
1. (a) Each Guarantor, jointly and severally, irrevocably and
unconditionally guarantees to the Administrative Agent and the Lenders the full
and prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (i) the principal of and interest on the Notes issued by, and the
Loans made to, the Borrower under the Credit Agreement, and (ii) all other
obligations and liabilities owing by the Borrower to the Administrative Agent or
any of the Lenders under the Credit Agreement (including, without limitation,
indemnities, Fees and interest thereon) now existing or hereafter incurred
under, arising out of or in connection with the Credit Agreement or any other
Credit Document and the due performance and compliance with the terms of the
Credit Documents by the Borrower, including any such interest or other amounts
which, but for any automatic stay under section 362(a) of the Bankruptcy Code,
would become due (all such principal, interest, liabilities and obligations
referred to in the foregoing clauses (i) and (ii) being herein collectively
called the "GUARANTEED OBLIGATIONS").
(b) Each Guarantor understands, agrees and confirms that the
Administrative Agent, on behalf of itself and the Lenders, may enforce this
Guaranty up to the full amount of the Guaranteed Obligations against any
Guarantor without proceeding against any other Guarantor, the Borrower or other
person, against any security for the Guaranteed Obligations, or under any other
guaranty covering all or a portion of the Guaranteed Obligations. All payments
by each Guarantor under this Guaranty shall be made in such currency and
otherwise in such manner as is provided in the Credit Documents.
2. (a) Additionally, each Guarantor, jointly and severally,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations to the Administrative Agent and the Lenders, whether or
not due or payable by the obligor thereon, upon the occurrence in respect of
the Borrower of any Event of Default under section 10.1(h) of the Credit
Agreement, and unconditionally and irrevocably, jointly and severally, promises
to pay such Guaranteed Obligations
<PAGE> 2
to the Administrative Agent, for the benefit of the Administrative
Agent and the Lenders, on demand, in such currency and otherwise in such manner
as is provided in the Credit Documents.
(b) As a separate, additional and continuing obligation, each Guarantor
unconditionally and irrevocably undertakes and agrees, for the benefit of the
Administrative Agent and the Lenders, that, should any amounts constituting
Guaranteed Obligations not be recoverable from the Borrower for any reason
whatsoever (including, without limitation, by reason of any provision of any
Credit Document or any other agreement or instrument executed in connection
therewith being or becoming void, unenforceable, or otherwise invalid under any
applicable law), THEN, notwithstanding any notice or knowledge thereof by the
Administrative Agent, any Lender, any of their respective Affiliates, or any
other person, at any time, each Guarantor as sole, original and independent
obligor, upon demand by the Administrative Agent, will make payment to the
Administrative Agent, for the account of the Lenders and the Administrative
Agent, of all such obligations not so recoverable by way of full indemnity, in
such currency and otherwise in such manner as is provided in the Credit
Documents.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the indebtedness of the
Borrower, whether executed by such Guarantor, any other Guarantor, any other
guarantor or by any other person, and the liability of each Guarantor hereunder
shall not be affected or impaired by (i) the application of any payment by the
Borrower or by any other person in accordance with the provisions of the Credit
Documents, (ii) any other guaranty, undertaking or maximum liability of a
guarantor or of any other person as to the indebtedness of the Borrower, (iii)
any payment on or in reduction of any such other guaranty or undertaking, (iv)
any dissolution, termination or increase, decrease or change in personnel by the
Borrower or (v) any payment made to the Administrative Agent or any Lender on
the indebtedness which the Administrative Agent or any Lender repays, returns or
otherwise restores to the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Guarantor waives any right to the deferral or modification of its
obligations hereunder by reason of any such proceeding.
4. The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor, any other guarantor or the Borrower, and a
separate action or actions may be brought and prosecuted against any Guarantor
whether or not action is brought against any other Guarantor, any other
guarantor or the Borrower and whether or not any other Guarantor, any other
guarantor of the Borrower or the Borrower be joined in any such action or
actions.
5. Each Guarantor waives, to the extent permitted by applicable law,
all presentments, demands for performance, protests and notices, including,
without limitation, notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional indebtedness. Each Guarantor assumes
all responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Guarantor assumes and incurs hereunder, and
agrees that the Administrative Agent and the Lenders shall have no duty to
advise any Guarantor of information known to them regarding such circumstances
or risks.
6. Any Lender or the Administrative Agent may at any time and from time
to time without the consent of or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, and upon or without any additional or different
terms or conditions and in whole or in part (but, in each case, in accordance
with the applicable provisions of the Credit Agreement, including without
limitation, section 12.10 thereof):
(i) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the
Guaranteed Obligations, any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guaranty
herein made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(ii) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any
of those hereunder) incurred directly or indirectly in respect thereof
or hereof, and/or any offset thereagainst;
2
<PAGE> 3
(iii) exercise or refrain from exercising any rights against
the Borrower or others or otherwise act or refrain from acting;
(iv) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
creditors of the Borrower;
(v) apply any sums by whomsoever paid or whomsoever realized
to any liability or liabilities of the Borrower to the Lenders
regardless of what liabilities of the Borrower remain unpaid;
(vi) consent to or waive any breach of, or any act, omission
or default under, any of the Credit Documents, or any of the
instruments or agreements referred to therein, or otherwise amend,
modify or supplement any of the Credit Documents, or any of such other
instruments or agreements; and/or
(vii) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation
against the Borrower to recover full reimbursement or indemnity for any
payments made pursuant to this Guaranty.
7 No invalidity, irregularity or unenforceability of all or any part of
the Guaranteed Obligations or of any security therefor or of any other guaranty
thereof shall affect, impair or be a defense to this Guaranty, and this Guaranty
shall be primary, absolute and unconditional notwithstanding the occurrence of
any event or the existence of any other circumstances which might constitute a
legal or equitable discharge of a surety or guarantor except payment in full of
the Guaranteed Obligations.
8 This Guaranty is a continuing one and all liabilities to which it
applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. No failure or delay on the part of the
Administrative Agent or any Lender in exercising any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or any Lender to any other or further action in any circumstances without notice
or demand. It is not necessary for the Administrative Agent or any Lender to
inquire into the capacity or powers of the Borrower or any of its Subsidiaries
or the officers, directors, partners or agents acting or purporting to act on
its behalf, and any indebtedness made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
9 Any Indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the Indebtedness of the Borrower to the
Lenders; and such Indebtedness of the Borrower to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred and is continuing
so requests, shall be collected, enforced and received by such Guarantor as
trustee for the Administrative Agent and the Lenders and be paid over to the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, on account of the Indebtedness of the Borrower to the Administrative
Agent and the Lenders, but without affecting or impairing in any manner the
liability of such Guarantor under the other provisions of this Guaranty. Prior
to the transfer by any Guarantor of any note or negotiable instrument evidencing
any Indebtedness of the Borrower to such Guarantor, such Guarantor shall mark
such note or negotiable instrument with a legend that the same is subject to
this subordination.
10 (a) Each Guarantor waives any right (except as shall be required by
applicable statute or other legal principles and cannot be waived) to require
the Administrative Agent or any of the Lenders to: (i) proceed against the
Borrower, any other Guarantor, any other guarantor of the Borrower or any other
person; (ii) proceed against or exhaust any security held from the Borrower, any
other Guarantor any other guarantor of the Borrower or any other person; or
(iii) pursue any other remedy in the Administrative Agent's or the Lenders'
power whatsoever. Each Guarantor waives, to the extent permitted by applicable
law, any defense based on or arising out of any defense of the Borrower, any
other Guarantor, any other guarantor of the Borrower or any other person other
than payment in respect of the Guaranteed Obligations or that the Guaranteed
Obligations are not yet due and payable, including, without limitation, any
defense based on or arising out of the
3
<PAGE> 4
disability of the Borrower, any other Guarantor, any other guarantor of the
Borrower or any other person, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in respect of the Guaranteed
Obligations. The Lenders may, at their election, cause the Administrative Agent
to foreclose on any security held by the Administrative Agent or any of the
Lenders by one or more judicial or nonjudicial sales (to the extent any such
sale is permitted by applicable law), or exercise any other right or remedy the
Administrative Agent or the Lenders may have against the Borrower or any other
person, or any security, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the Guaranteed Obligations have
been paid.
(b) Until such time as the Guaranteed Obligations have been paid in
full in cash, each Guarantor hereby waives all rights of subrogation which it
may at any time otherwise have as a result of this Guaranty (whether
contractual, under section 509 of the Bankruptcy Code, or otherwise) to the
claims of the Administrative Agent and the Lenders against the Borrower, any
other Guarantor or any other guarantor of the Guaranteed Obligations and all
contractual, statutory or common law rights of reimbursement, contribution or
indemnity from the Borrower or any other Guarantor which it may at any time
otherwise have as a result of this Guaranty.
11 If and to the extent that any Guarantor makes any payment to any
Lender or to any other person pursuant to or in respect of this Guaranty, any
claim which such Guarantor may have against the Borrower by reason thereof shall
be subject and subordinate to the prior payment in full of the Guaranteed
Obligations to the Administrative Agent and each Lender.
12 Each Guarantor covenants and agrees that on and after the date
hereof and until the termination of the Total Commitment and when no Note
remains outstanding and all Guaranteed Obligations have been paid in full, such
Guarantor shall take, or will refrain from taking, as the case may be, all
actions applicable to such Guarantor that are necessary to be taken or not taken
so that no violation of any provision, covenant or agreement contained in
section 8 or 9 of the Credit Agreement, and so that no Default or Event of
Default, is caused by the actions of such Guarantor or any of its Subsidiaries.
13 Each Guarantor represents and warrants that:
(a) it is a duly organized or formed and validly existing
corporation, partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its
formation and has the corporate, partnership or limited liability
company power and authority, as applicable, to own its property and
assets and to transact the business in which it is engaged and
presently proposes to engage;
(b) it has the corporate or other organizational power and
authority to execute, deliver and carry out the terms and provisions of
the Credit Documents to which it is party and has taken all necessary
corporate or other organizational action to authorize the execution,
delivery and performance of the Credit Documents to which it is party;
(c) it has duly executed and delivered each Credit Document to
which it is party and each Credit Document to which it is party
constitutes the legal, valid and binding agreement or obligation of
such Guarantor enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law);
(d) neither the execution, delivery and performance by such
Guarantor of the Credit Documents to which it is party nor compliance
with the terms and provisions thereof (i) will contravene any provision
of any law, statute, rule, regulation, order, writ, injunction or
decree of any court or governmental instrumentality applicable to such
Guarantor or its properties and assets, (ii) will conflict with or
result in any breach of, any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation
or imposition of (or the obligation to create or impose) any Lien upon
any of the property or assets of such Guarantor pursuant to the terms
of any promissory note, bond, debenture, indenture, mortgage, deed of
trust, credit or loan agreement, or any other material agreement or
other instrument, to which such Guarantor is a party or by which it or
any of its property or assets are bound or to which it may be subject,
or (iii) will violate any provision of the certificate or articles of
incorporation, code of regulations or by-laws, or other charter
documents of such Guarantor;
4
<PAGE> 5
(e) no order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption
by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as
a condition to (i) the execution, delivery and performance by such
Guarantor of any Credit Document to which it is a party, or (ii) the
legality, validity, binding effect or enforceability of any Credit
Document to which such Guarantor is a party;
(f) there are no actions, suits or proceedings pending or, to,
the knowledge of such Guarantor, threatened with respect to such
Guarantor which question the validity or enforceability of any of the
Credit Documents to which such Guarantor is a party, or of any action
to be taken by such Guarantor pursuant to any of the Credit Documents
to which it is a party; and
(g) as of the date such Guarantor has become a party to this
Guaranty, (i) such Guarantor has received consideration which is the
reasonable equivalent value of the obligations and liabilities that
such Guarantor has incurred to the Administrative Agent and the Lenders
under this Guaranty and the other Credit Documents to which such
Guarantor is a party; (ii) such Guarantor has capital sufficient to
carry on its business and transactions and all business and
transactions in which it is about to engage and is solvent and able to
pay its debts as they mature; (iii) such Guarantor owns property having
a value, both at fair valuation and at present fair salable value,
greater than the amount required to pay its debts; and (iv) such
Guarantor is not entering into the Credit Documents to which it is a
party with the intent to hinder, delay or defraud its creditors.
14 The Guarantors hereby jointly and severally agree to pay, to the
extent not paid pursuant to section 12.1 of the Credit Agreement, all reasonable
out-of-pocket costs and expenses of the Administrative Agent and each Lender
(including, without limitation, the reasonable fees and disbursements of counsel
employed by the Administrative Agent or any of the Lenders) in connection with
(i) any amendment, waiver or consent relating hereto, and (ii) the enforcement
of this Guaranty after an Event of Default has occurred and is continuing.
15 This Guaranty shall be binding upon each Guarantor and its
successors and assigns, and shall inure to the benefit of the Administrative
Agent and the Lenders and their successors and assigns to the extent permitted
under the Credit Agreement.
16 Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated except with the written consent of the Required
Lenders (or to the extent required by section 12.12 of the Credit Agreement,
with the written consent of each Lender) and each Guarantor affected thereby (it
being understood that the addition or release of any Guarantor hereunder shall
not constitute a change, waiver, discharge or termination affecting any
Guarantor other than the Guarantor so added or released).
17 Each Guarantor acknowledges that an executed (or conformed) copy of
each of the Credit Documents has been made available to its principal executive
officers and such officers are familiar with the contents thereof.
18 In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence and
during the continuance of an Event of Default, each Lender is hereby authorized
at any time or from time to time, without notice to any Guarantor or to any
other person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender to or for the credit or
the account of such Guarantor, against and on account of the obligations and
liabilities of such Guarantor to such Lender under this Guaranty, irrespective
of whether or not the Administrative Agent or such Lender shall have made any
demand hereunder and although said obligations, liabilities, deposits or claims,
or any of them, shall be contingent or unmatured. Each Lender agrees to promptly
notify the Administrative Agent and the relevant Guarantor in writing after any
such set off and application, describing the same, PROVIDED, HOWEVER that the
failure to give such notice shall not affect the validity of such set off and
application.
19 All notices requests, demands or other communications pursuant
hereto shall be made in writing (including telegraphic, telex, facsimile
transmission or cable communication) and mailed, telegraphed, telexed,
transmitted, cabled or delivered, if to any Guarantor, to such Guarantor c/o the
Borrower at its address specified in or pursuant to the Credit Agreement; and if
to the Administrative Agent or any Lender, as provided in the Credit Agreement;
or in any case at such other address as any of the persons listed above may
hereafter notify the others in writing. All such notices and
5
<PAGE> 6
communication shall be mailed, telegraphed, telexed, facsimile transmitted, or
cabled or sent by overnight courier, and shall be effective when received.
20 If claim is ever made upon the Administrative Agent or any Lender
for repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations and any of the aforesaid payees
repays all or part of said amount by reason of (i) any judgment, decree or order
of any court or administrative body having jurisdiction over such payee or any
of its property or (ii) any settlement or compromise of any such claim effected
by such payee with any such claimant (including the Borrower), then and in such
event each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
21 (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
ADMINISTRATIVE AGENT, THE LENDERS AND OF THE UNDERSIGNED HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF OHIO. Any
legal action or proceeding with respect to this Guaranty may be brought in the
Court of Common Pleas of Cuyahoga County, Ohio, or of the United States for the
Northern District of Ohio, and, by execution and delivery of this Guaranty, each
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Guarantor hereby irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered mail, return receipt requested, to such Guarantor
at its address provided herein, such service to become effective 30 days after
such mailing, or such earlier time as may be provided by applicable law. Nothing
herein shall affect the right of the Administrative Agent or any of the Lenders
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against any Guarantor in any other
jurisdiction.
(b) Each Guarantor hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty or any other
Credit Document brought in the courts referred to in section 21(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that such action or proceeding brought in any such court has been brought
in an inconvenient forum.
(c) EACH GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
22 In the event that all of the capital stock of one or more Guarantors
is sold or otherwise disposed of or liquidated in compliance with the
requirements of section 9.2 of the Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all Lenders
if required by section 12.12 of the Credit Agreement)) and the proceeds of such
sale, disposition or liquidation are applied, to the extent applicable, in
accordance with the provisions of the Credit Agreement, such Guarantor shall be
released from this Guaranty and this Guaranty shall, as to each such Guarantor
or Guarantors, terminate, and have no further force or effect (it being
understood and agreed that the sale of one or more persons that own, directly or
indirectly, all of the capital stock or other equity interests of any Guarantor
shall be deemed to be a sale of such Guarantor for the purposes of this section
22).
23 Each Guarantor, in addition to the subrogation rights it shall have
against the Borrower under applicable law as a result of any payment it makes
hereunder, shall also have a right of contribution against all other Guarantors
in respect of any such payment PRO RATA among same based on their respective net
fair value as enterprises, PROVIDED any such right of contribution shall be
subject and subordinate to the prior payment in full of the Guaranteed
Obligations (and such Guarantor's obligations in respect thereof). It is the
desire and intent of each Guarantor, the Administrative Agent and the Lenders
that this Guaranty shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. If and to the extent that the obligations of any Guarantor under this
Guaranty would, in the absence of this sentence, be adjudicated to be invalid or
unenforceable because of any applicable state or federal law relating to
fraudulent conveyances or transfers, then the amount of such Guarantor's
liability hereunder in
6
<PAGE> 7
respect of the Guaranteed Obligations shall be deemed to be reduced AB INITIO to
that maximum amount which would be permitted without causing such Guarantor's
obligations hereunder to be so invalidated.
24 The Lenders agree that this Guaranty may be enforced only by the
action of the Administrative Agent, acting upon the instructions of the Required
Lenders, and that no Lender shall have any right individually to seek to enforce
or to enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Administrative Agent and the Lenders upon the terms of this Guaranty. The
Administrative Agent and the Lenders further agree that this Guaranty may not be
enforced against any director, officer or employee of any Guarantor, as such.
25 This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A set of counterparts executed by all
the parties hereto shall be lodged with the Borrower and the Administrative
Agent.
7
<PAGE> 8
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
FRICTION PRODUCTS CO.
S.K. WELLMAN CORP.
HELSEL, INC.
LOGAN METAL STAMPINGS, INC.
HUTCHINSON PRODUCTS CORPORATION
SINTERLOY CORPORATION
HAWK BRAKE, INC.
S. K. WELLMAN HOLDINGS, INC.
WELLMAN FRICTION PRODUCTS U. K. CORP.,
AS GUARANTORS
BY: /s/ Thomas A. Gilbride
-----------------------------------------
A VICE PRESIDENT OF, AND ON BEHALF
OF, EACH OF THE ABOVE CORPORATIONS
8
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