C:\WINDOWS\TEMP\1022184.DOC
THIRD
AMENDED AND RESTATED
CREDIT AGREEMENT
- Among -
GIBRALTAR STEEL CORPORATION
and
GIBRALTAR STEEL CORPORATION OF NEW YORK
- And -
THE CHASE MANHATTAN BANK
as Administrative Agent
- And -
THE BANKS LISTED ON SCHEDULE 1
DATED: As of September 29, 2000
TABLE OF CONTENTS
Page
ARTICLE I. Definitions 1
1.1 Definitions 1
ARTICLE II. The Credit 8
2.1 Revolving Credit 8
2.2 Letters of Credit 10
2.3 [Intentionally Omitted] 11
2.4 Interest 12
2.5 Prepayment 13
2.6 Use of Proceeds and Letters of Credit 14
2.7 Special Provisions Governing LIBOR Loans -
Increased Costs 14
2.8 Required Termination and Repayment of LIBOR
Loans 15
2.9 Taxes 16
2.10 Unused Line Fee 16
2.11 Reduction 16
2.12 Administrative Agent's Fee 17
2.13 Payments 17
2.14 Sharing of Payments 17
ARTICLE III. Conditions to the Extension of Credit 18
3.1 Conditions to Extension of Credit 18
3.1.a. Corporate Action 18
3.1.b. Corporate Documents 18
3.1.c. Notes 18
3.1.d. Guaranty 18
3.1.e. Security Agreements 19
3.1.f. Uniform Commercial Code Searches 19
3.1.g. Subsidiary Action 19
3.1.h. Opinion 19
3.1.i. Certificates 19
3.1.j. Other Matters 19
3.2 Conditions to Subsequent Extensions of Credit20
ARTICLE IV. Representations and Warranties 20
4.1 Good Standing and Authority 20
4.2 Valid and Binding Obligation 20
4.3 Good Title 20
4.4 No Pending Litigation 21
4.5 No Consent or Filing 21
4.6 No Violations 21
4.7 Financial Statements 21
4.8 Tax Returns 22
4.9 Federal Regulations 22
4.10 ERISA Matters 22
4.11 Subsidiaries 22
4.12 Compliance 23
4.13 Fiscal Year 23
4.14 Default 23
4.15 Indebtedness for Borrowed Money 23
4.16 Securities 23
4.17 Inventory Locations 23
4.18 Environmental Matters 23
ARTICLE V. Affirmative Covenants 24
5.1 Payments 24
5.2 Future Financial Statements 24
5.3 Books and Records 25
5.4 Corporate Standing 25
5.5 Discharge of Obligations 25
5.6 Insurance 26
5.7 Examinations 26
5.8 Litigation 26
5.9 Judgments 26
5.10 Fair Labor Standards Act 27
5.11 Notice 27
5.12 Environmental Compliance 27
ARTICLE VI. Negative Covenants 27
6.1 Business Operations 27
6.2 Borrowed Money 27
6.3 Guaranties 28
6.4 Liens 28
6.5 Accumulated Funding Deficiency 28
6.6 Compliance with Law 28
6.7 Expansions, Mergers, Acquisitions and Joint
Ventures 28
6.8 Loans and Advances 29
6.9 Subsidiaries 29
6.10 Dividends 29
6.11 Voting Stock 29
6.12 Sale of Assets 29
6.13 Lease Rentals 29
6.14 [Intentionally omitted] 29
6.15 Interest Coverage Ratio 29
6.16 Net Worth 30
6.17 Funded Debt/EBITDA. 30
6.18 Current Ratio 30
ARTICLE VII. Default 30
7.1 Events of Default 30
7.2 Effects of an Event of Default 33
ARTICLE VIII. Relationship of Chase and the Administrative Agent
and the Banks 34
8.1 Appointment and Authorization 34
8.2 No Other Duties 34
8.3 Copies and Notice of Event of Default or
Default 34
8.4 Certain Rights of Chase and the
Administrative Agent 35
8.5 Waiver of Liability of Administrative Agent 36
8.6 Enforcement; Payments to Administrative Agent. 37
8.7 Non-Reliance on Administrative Agent and
Other Banks 38
8.8 Indemnification 38
8.9 Administrative Agent in Its Individual
Capacity 39
8.10 Successor Administrative Agent 39
8.11 Reclaimed Payments; Other Actions 39
8.12 Benefit of Article VIII 40
ARTICLE IX. Indemnification - Costs and Expenses 40
9.1 Indemnification 40
9.2 Expenses 40
ARTICLE X. Miscellaneous 41
10.1 Amendments and Waivers 41
10.2 Delays and Omissions 41
10.3 Participations and Assignments 41
10.4 Successors and Assigns 42
10.5 Notices 42
10.6 Governing Law 43
10.7 Counterparts 43
10.8 Titles 43
10.9 Inconsistent Provisions 43
10.10 JURY TRIAL WAIVER 43
10.11 CONSENT TO JURISDICTION 43
EXHIBIT A Compliance Certificate - Financial Covenants
EXHIBIT B Compliance Certificate - General
EXHIBIT C Revolving Note
Schedule 1 List of Banks
Schedule 3.1.d Subsidiaries Required to Execute Guaranties
Schedule 4.11 Subsidiaries
Schedule 4.15/6.2 Permitted Borrowing
Schedule 4.18 Environmental Matters
Schedule 6.4 Permitted Encumbrances
<PAGE>
AGREEMENT, dated as of September 29, 2000 among
GIBRALTAR STEEL CORPORATION, a Delaware corporation ("Company");
GIBRALTAR STEEL CORPORATION OF NEW YORK, a New York corporation
("Borrower"); the financial institutions listed on Schedule 1
hereto as amended from time to time (collectively, "Banks", and
each individually, "Bank"); and THE CHASE MANHATTAN BANK, as
Administrative Agent for the Banks.
WITNESSETH
ARTICLE I. Definitions
1.1 Definitions. As used in this Agreement, unless
otherwise specified, the following terms shall have the following
respective meanings:
"Administrative Agent" - The Chase Manhattan Bank in
its capacity as administrative agent or such other bank as shall
have subsequently been appointed and accepted as successor to
Administrative Agent pursuant to Section 8.10.
"Administrative Agent's Office" - The office of the
Administrative Agent at 2300 Main Place Tower, Buffalo, New York
14202, or such other office of the Administrative Agent as it
shall specify by a notice in writing to the Borrower, the Company
and the Banks.
"Advance", or collectively, "Advances" - "Advance", or
collectively "Advances", as defined in Section 2.1(a) of this
Agreement.
"Affiliate" - Any (a) Person who now or hereafter has
Control of or is now or hereafter under common Control with, the
Company or any Subsidiary or over whom or over which the Company
or any Subsidiary now or hereafter has Control, (b) any Person
who is now or hereafter related by blood, by adoption or by
marriage to any such Person or now or hereafter resides in the
same home as any Person referred to in clause (a) of this
sentence, (c) any Person who is now or hereafter an officer of
the Company or of any Subsidiary or (d) any Person who is now or
hereafter related by blood, by adoption or by marriage to any
Person referred to in clause (c) of this sentence or now or
hereafter resides in the same home as any such Person or over
whom or over which any such Person now or hereafter has Control.
"Bank" and "Banks" - "Bank" and "Banks" as defined in
the preamble of this Agreement, and such other entities as may
from time to time be added by the Administrative Agent as banks
under and as parties to this Agreement.
"Base Rate" - The higher of (i) the Federal Funds Rate,
plus 2 of 1%, or (ii) the Prime Rate.
"Base Rate Loan" - That portion of Advances from time
to time unpaid evidenced by the Revolving Note and bearing
interest at the Base Rate as specified in Section 2.4.
"Borrower" - "Borrower" as defined in the preamble of
this Agreement.
"Business Day" - (a) For all purposes other than as
covered by clause (b) below, any day excluding Saturday, Sunday
and any day on which banks in New York City are authorized by law
or other governmental action to close and (b) with respect to all
notices and determinations in connection with LIBOR, any date
which is a Business Day described in clause (a) and which is also
a day for trading by and between banks in U.S. dollar deposits in
the London interbank market.
"Capital Expenditure" - The dollar amount of gross
expenditures (including obligations under capital leases) made
for fixed assets, real property, plant and equipment, and all
renewals, improvements and replacements thereto (but not repairs
thereof) incurred for any period.
"Cash Flow" - For any period, the sum of (i) Earnings
before Interest and Taxes, plus (ii) depreciation and
amortization expenses and all other non-cash charges which were
deducted in determining Earnings before Interest and Taxes.
"Chase" - The Chase Manhattan Bank and its successors
and assigns.
"Code" - The Internal Revenue Code of 1986, as amended
from time to time.
"Collateral Documents" - Collectively, the Guaranties
and the Security Agreements.
"Commitment" - "Commitment" as defined in
Section 2.1(a) of this Agreement and collectively, the
"Commitments".
"Commonly Controlled Entity" - An entity, whether or
not incorporated, which is under common control with the Company
within the meaning of Section 414(b) or (c) of the Code.
"Company" - "Company" as defined in the preamble of
this Agreement.
"Compliance Certificate - Financial Covenants" - A
certificate from the President or an appropriate financial
officer of the Borrower and the Company or from the independent
certified public accountants for the Borrower and the Company, as
the case may be, in the form of Exhibit A setting forth the
computations, ratios and calculations evidencing compliance with,
the financial covenants contained within Article VI of this
Agreement.
"Compliance Certificate - General" - A certificate from
the President or an appropriate financial officer of the Borrower
and the Company in the form of Exhibit B annexed hereto
certifying that (i) the Borrower, the Company and its
Subsidiaries have complied with and are in compliance with all
the terms, covenants and conditions of this Agreement which are
binding upon them; (ii) there exists no Default nor Event of
Default, or if this is not the case, that one or more specified
Defaults or Events of Default have occurred, together with a
description of the action taken or to be taken by the Borrower
and/or the Company to cure the same; and (iii) the
representations and warranties contained in this Agreement are
true with the same effect as though made on the date of the
certificate.
"Consolidated" or "Company on a Consolidated basis" -
The consolidation of the accounts of the Company and its
Subsidiaries in accordance with GAAP, including principles of
consolidation, consistent with those applied in the preparation
of the Company=s Consolidated audited financial statements.
"Control" - (i) The power to vote 5% or more of the
outstanding shares of any class of stock of a Person which is a
corporation, (ii) the beneficial ownership of 5% or more of the
outstanding shares of any class of stock of a Person which is a
corporation or (iii) the power to direct or cause the direction
of the management and policies of a Person which is not a
corporation, whether by ownership of any stock or other ownership
interest, by agreement or otherwise, in each case by or on behalf
of a single Person or group of Persons acting as a group for the
purposes of filing Form 13-D with the Securities and Exchange
Commission.
"Conversion Date" - The first day of a LIBOR Period
with respect to any LIBOR Loan.
"Credit" - All extensions of credit set forth in
Article II of this Agreement, whether in the form of Advances,
Swingloans or Letters of Credit.
"Credit Pricing Agreement" - The Third Amended Credit
Pricing Agreement dated July 17, 2000 among the Company, the
Borrower, the Banks and the Administrative Agent setting forth
the pricing with respect to the Revolving Credit, as such
agreement may be amended, replaced or restated from time to time.
"Current Assets" - All assets treated as current assets
in accordance with GAAP, excluding, however, from the
determination of current assets: prepaid expenses, assets located
outside the United States and loans to Subsidiaries and
Affiliates.
"Current Liabilities" - Those liabilities classified as
current in accordance with GAAP with adequate provisions for all
accrued liabilities, including, without limitation, all federal
and state taxes, except those taxes classified as deferred in
accordance with GAAP.
"Default" - Any event or occurrence which with the
giving of notice or passage of time or both constitutes an Event
of Default.
"Earnings before Interest and Taxes" - For any period,
the income of an entity for such period prior to the deduction of
any provisions for income taxes, reserves (including reserves for
deferred income taxes) and interest payable on Indebtedness,
determined in accordance with GAAP.
"Environment" - Any water or water vapor; any land
including land surface or subsurface, air, fish, wildlife, biota
and all other natural resources.
"Environmental Laws" - All federal, state and local
environmental, land use, zoning, health, chemical use, safety and
sanitation laws, statutes, ordinances and codes relating to the
protection of the Environment and/or governing the use, storage,
treatment, generation, transportation, processing, handling,
production or disposal of Hazardous Substances and the rules,
regulations, policies, guidelines, interpretations, decisions,
orders and directives of federal, state and local governmental
agencies and authorities with respect thereto.
"Environmental Permits" - All permits, licenses,
approvals, authorizations, consents or registrations required by
any applicable Environmental Law in connection with ownership,
lease, purchase, transfer, closure, use and/or operation of any
property for the storage, treatment, generation, transportation,
processing, handling, production or disposal of Hazardous
Substances or the sale, transfer or conveyance of any such
property.
"ERISA" - The Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Event of Default" - An "Event of Default" as defined
in Section 7.1 of this Agreement.
"Expansion" - The formation by the Company, the
Borrower or any Subsidiary of an entity which is a Subsidiary or
an Affiliate.
"Federal Funds Rate" - For any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for the 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 date on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"GAAP" - As of the date of any determination, generally
accepted accounting principles as promulgated by the Financial
Accounting Standards Board and/or the American Institute of
Certified Public Accountants, consistently applied and maintained
throughout the relevant periods and from period to period.
"Guarantor Subsidiary(ies)" - "Guarantor
Subsidiary(ies) as defined in Section 3.1.d of this Agreement.
"Guaranty(ies)" - The guaranty executed and delivered
by the Company and each Subsidiary, other than the Borrower, and
described in Section 3.1.d or Section 6.9 of this Agreement.
"Hazardous Substance" - Without limitation, any
flammable explosives, radon, radioactive materials, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum based products, methane, hazardous
materials, hazardous wastes, hazardous or toxic substances or
related materials as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended,
(42 U.S.C. Section 9601, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Sections 1801,
et seq.), the Resource Conservation and Recovery Act, as amended
(42 U.S.C. Sections 6901, et seq.), the Toxic Substances Control
Act, as amended, (15 U.S.C. Sections 2601, et seq.), Articles 15
and 27 of the New York State Environmental Conservation Law or
any other applicable Environmental Law and in the regulations
promulgated thereunder.
"Indebtedness" - At a particular date, without
duplication, (a) all indebtedness of a Person for borrowed money
or for the deferred purchase price of property, whether short
term or long term, (b) the face amount of all letters of credit
issued for the account of such Person and, without duplication,
all drafts drawn thereunder and not repaid by such Person, and
(c) lease obligations of such Person which, in accordance with
GAAP, should be capitalized; provided, in no event shall
Indebtedness include any guaranties or other contingent
obligations.
"Letter of Credit" - An irrevocable commercial or
standby letter of credit issued by Chase on behalf of the Banks
pursuant to this Agreement upon application by the Borrower.
"LIBOR" - The rate per annum (rounded upward, if
necessary, to the next highest 1/100 of 1%) equal to (a) the rate
quoted at approximately 11:00 a.m. (London time) by the principal
London branch of the Administrative Agent on a LIBOR Interest
Determination Date for the offering to leading banks in the
London interbank market of U.S. Dollar deposits in immediately
available funds for the applicable LIBOR Period, and in an amount
equal to the applicable LIBOR Loan; plus (b) the LIBOR Increment.
"LIBOR (Reserve Adjusted)" - Relative to any Advance to
be made, continued or maintained as, or converted into, a LIBOR
Loan for any LIBOR Period, a rate per annum (rounded upward, if
necessary, to the next highest 1/100 of 1%) determined pursuant
to the following formula:
LIBOR = LIBOR
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
"LIBOR Increment" - The percentage calculated in
accordance with Section 2.4(b) of this Agreement which is
utilized in determining LIBOR.
"LIBOR Interest Determination Date" - means a Business
Day which is two (2) Business Days prior to the commencement of
each LIBOR Period during which the LIBOR (Reserve Adjusted) rate
will be applicable.
"LIBOR Lending Office" - The office of each Bank
designated as such below its name on Schedule 1 hereto or such
other office of such Bank (as designated from time to time by
notice from such Bank to the Borrower and Administrative Agent),
whether or not outside the United States, which shall be making
or maintaining LIBOR Loans of such Bank hereunder.
"LIBOR Loan" - That portion of Advances from time to
time unpaid and bearing interest at LIBOR (Reserve Adjusted) as
specified in Section 2.4.
"LIBOR Period" - means the 30, 60, 90 or 180 day period
selected by the Borrower pursuant to Section 2.4 of the Credit
Agreement on which the LIBOR (Reserve Adjusted) is to be quoted.
"LIBOR Reserve Percentage" - For any Bank for any LIBOR
Period, the percentage (expressed as a decimal) applicable at the
time LIBOR for such LIBOR Period is determined, under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including any emergency, supplemental or
other marginal reserve requirement) for such Bank in respect of
assets or liabilities consisting of and including "Eurocurrency
Liabilities," as defined in Regulation D of such Board, having a
term approximately equal or comparable to such LIBOR Period.
"Lien" - Any mortgage, deed of trust, pledge,
hypothecation, assignment, security interest, lien, charge or
encumbrance, or preference, priority or other security agreement
or preferential arrangement in respect of any asset of any kind
or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as
any of the foregoing, and the filing of, or agreement to give,
any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
"Majority Banks" - The Banks representing sixty-six
percent (66%) of the Commitments from time to time in effect.
"Maximum Revolving Credit Commitment" - The total
aggregate amount of the Commitments of all Banks as set forth on
Schedule 1 hereto, provided that the total aggregate amount
thereof shall not exceed $310,000,000.00."
"Multiemployer Plan" - A Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Worth" - At a particular date, all amounts which
would be included under shareholders' equity on a balance sheet
of an entity, determined in accordance with GAAP.
"Note" - Any Revolving Note.
"Permitted Encumbrances" - as listed on Schedule 6.4 of
this Agreement.
"Percentage" - The percentage set forth opposite the
name of each Bank on Schedule 1 hereof.
"Person" - Any individual, corporation, partnership,
joint venture, trust, unincorporated association, government or
political subdivision or other entity, body, organization or
group.
"Plan" - Any employee benefits plan which is covered by
Title IV of ERISA and in respect of which the Company, the
Borrower or a Commonly Controlled Entity is an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate" - The prime commercial lending rate of
interest publicly announced by the Administrative Agent from time
to time at its head office. The Prime Rate may or may not be the
most favorable rate charged by the Administrative Agent to its
customers from time to time.
"Rate Option" - The choice of applicable interest rates
and LIBOR Periods offered to the Borrower pursuant to Section 2.4
of this Agreement.
"Release" - The same meaning as given to that term in
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Section 9601,
et seq.), and the regulations promulgated thereunder.
"Reportable Event" - Any event with regard to a Plan
described in Section 4043(b) of ERISA or in regulations issued
thereunder.
"Revolving Credit" - The "Revolving Credit" as defined
in Section 2.1(a) of this Agreement.
"Revolving Note" - Collectively, the promissory notes
of Borrower in the form of Exhibit C evidencing Borrower's
promise to repay Advances under the Revolving Credit, and any
renewals, replacements or extensions thereof.
"Security Agreements" - Security Agreements as defined
in Section 3.1(e) of this Agreement or as described in Section
6.9 of this Agreement.
"Security Interests" - Security Interest as defined in
Section 3.1(e) of this Agreement.
"Subordinated Debt" - Indebtedness of the Company or
any Subsidiary which is subordinated, in form and content
satisfactory to the Administrative Agent with the agreement of
the Majority Banks, to any and all Indebtedness owing to any of
the Banks or Administrative Agent whether arising out of this
Agreement or otherwise.
"Subsidiary" - Any corporation of which at least 50% of
the voting stock or any other entity of which at least 50% of the
ownership interests is owned by the Company directly or
indirectly through one or more Subsidiaries.
"Swingloan", or collectively, "Swingloans" -
"Swingloan", or collectively, "Swingloans", as defined in Section
2.1 (c) of this Agreement.
"Termination Date" - The maturity date of the Credit,
which shall be April 1, 2003 and may be shortened in accordance
with Section 2.11 or 7.2 hereof.
"Total Liabilities" - At a particular date, the sum,
without duplication, of (a) all amounts which would be included
as liabilities on a balance sheet of an entity at such date,
determined in accordance with GAAP and (b) any Indebtedness of
such entity.
1.2 Accounting Terms. All accounting terms not
otherwise defined herein have the meanings assigned to them in
accordance with GAAP consistent with those applied in the
preparation of the audited Consolidated financial statements of
the Company and its Subsidiaries referred to in this Agreement.
Capitalized words not otherwise defined in this Agreement shall
have the meanings set forth in the New York Uniform Commercial
Code as in effect on the date of this Agreement.
ARTICLE II. The Credit
2.1 Revolving Credit.
(a) Advances. Subject to the terms and
conditions of this Agreement and relying upon the representations
and warranties set forth in this Agreement, and provided that
there has been no material adverse change in the financial
condition of the Borrower or the Company, and provided there is
no Event of Default hereunder, each Bank, severally and for
itself alone, agrees that it will, from time to time during the
period commencing on the date the conditions specified in Section
3.1 are satisfied through the Business Day preceding the
Termination Date, make one or more Advances ("Advance" or
collectively "Advances") to the Borrower equal to its Percentage
of the aggregate amount of Advances requested by Borrower from
all Banks up to the dollar amount set forth opposite the name of
each Bank on Schedule 1 hereto (which amount, with respect to
each Bank, shall be called its "Commitment"); provided, however,
no Bank shall be required or permitted to make any Advance or
participate in any Letter of Credit if, after giving effect
thereto, the aggregate outstanding principal amount of all
Advances and the aggregate face amount of Letters of Credit
issued ("Revolving Credit") would exceed the Maximum Revolving
Credit Commitment at any one time outstanding. Subject to
Section 2.5 hereof, the Advances may be repaid and reborrowed in
accordance with the provisions hereof; provided, however, no
further Advances shall be made on or after the Termination Date,
at which time the Revolving Credit shall be due and payable in
full.
(b) Method for Borrowing Advances. If and when
the Borrower wishes the Banks to make Advances available, the
Borrower shall notify the Administrative Agent not later than
12:00 noon (New York time) on the Business Day on which the
Advance is to be funded. The Borrower shall specify (i) the
aggregate amount of the Advance to be made on a designated date,
which amount shall be at least $100,000.00 and (ii) the proposed
date on which the Advance is to be funded, which shall be a
Business Day. Upon receipt of such notice from the Borrower, the
Administrative Agent shall promptly notify each of the Banks
thereof. Each Bank shall make an amount equal to such Bank's
Percentage of the requested Advance available to the
Administrative Agent for the account of the Borrower at the
Administrative Agent's Office not later than 1:00 p.m. (New York
time) on the designated date of the Advance, in immediately
available funds. As early as practically possible, but not later
than 3:00 p.m. (New York time) on the date on which the Advance
is to be made and upon fulfillment of the conditions set forth in
Article III of this Agreement, the Administrative Agent will make
the proceeds of such Advance which it received from the Banks
available to the Borrower.
Neither the Administrative Agent nor any Bank
shall incur any liability to the Borrower in acting upon any
notice referred to above or subsection 2.1(c) by telephone which
the Administrative Agent or such Bank believes in good faith to
have been given by a duly authorized officer or other person
authorized to borrow on behalf of the Borrower or for otherwise
acting in good faith.
(c) Swingloans. Subject to the terms and
conditions of this Agreement, relying upon the representations
and warranties set forth in this Agreement, and so long as the
aggregate outstanding principal amount of all Advances and the
aggregate face amount of Letters of Credit issued are the Maximum
Revolving Credit Commitment or less, Chase agrees to make to the
Borrower one or more Swingloans ("Swingloan" or collectively
"Swingloans") as requested by the Borrower during the period
commencing on the date the conditions specified in Section 3.1
are satisfied through the Business Day preceding the Termination
Date in an amount which will not exceed Ten Million Dollars
($10,000,000.00) at any one time outstanding. At such time and
for as long as the aggregate outstanding principal amount of all
Advances and the aggregate face amount of Letters of Credit
issued are more than the Maximum Revolving Credit Commitment, the
Borrower will not request, and Chase will not make a Swingloan.
The Banks other than Chase will not participate in nor be
obligated to advance Swingloans. The obligation of Chase to make
Swingloans shall automatically terminate on the date of any
reduction in the Commitments in accordance with Section 2.11 or
the cancellation of the Commitments pursuant to Section 7.2
If and when the Borrower wishes Chase to make a
Swingloan, the Borrower shall notify Chase not later than 12:00
noon (New York time) on the Business Day on which the Swingloan
is to be made of the amount of the Swingloan desired, which
amount shall be at least $50,000.00. Chase shall determine and
advise the Borrower promptly thereafter of the per annum fixed
rate option applicable to the Swingloan, which rate shall be the
fluctuating interest rate per annum for each day on overnight
Federal funds transactions with members of the Federal Reserve
System, plus 150 basis points ("Fixed Rate"). The Borrower shall
immediately notify Chase if the Swingloan is to bear interest at
the Fixed Rate or the Prime Rate, which notice shall be
irrevocable. Each Swingloan, together with the interest accrued
thereon, shall be repaid by the Borrower to the Administrative
Agent for the account of Chase prior to the close of business on
the Business Day immediately following the Business Day on which
such Swingloan is made.
(d) The Revolving Note. The Advances made by
each Bank and the Swingloans made by Chase and shall be evidenced
by a note of the Borrower to each Bank with blanks appropriately
completed in the form of Exhibit C annexed hereto and made a part
hereof ("Revolving Note").
Each Note may be inscribed by the Bank as holder of the
Note on the reverse side thereof or any continuation thereof with
the outstanding principal balance of the Advance by such Bank,
and, in the case of Chase, with the outstanding principal balance
of the Swingloan, and any such inscription shall constitute prima
facie evidence of the accuracy of the information so recorded;
provided, however, the failure of any Bank to make any such
inscription shall not affect the Company's obligations under the
Note of such Bank or this Agreement.
2.2 Letters of Credit.
(a) Letters of Credit. Subject to the terms and
conditions of this Agreement and relying upon the representations
and warranties set forth in this Agreement, Chase, upon
application of the Borrower, shall from time to time during the
period commencing on the date the conditions specified in
Section 3.1 are satisfied through the date which is two (2)
Business Days preceding the Termination Date, issue Letters of
Credit on behalf of the Banks for the account of the Borrower,
the Company or any Subsidiary in a face amount which when
combined with the aggregate face amount of Letters of Credit
outstanding does not exceed $5,000,000.00 at any time and each of
which shall have an expiration date which may extend beyond the
Termination Date but shall not exceed one year from the date of
issuance; provided, however, at the request of the Borrower or
the Company, as applicable, Chase, prior to the Termination Date,
may extend the maturity date of any Letter of Credit for
additional periods not exceeding one year each; and provided
further, Chase will not issue any Letter of Credit if, after
giving effect thereto, (i) the aggregate outstanding principal
amount of all Advances and the aggregate face amount of Letters
of Credit outstanding would exceed the Maximum Revolving Credit
Commitment as such amount may be reduced by an amount designated
by the Borrower pursuant to Section 2.11 hereof, or (ii) the
Percentage of any Bank of its Commitment would be exceeded upon
its purchase of an undivided interest in such Letter of Credit as
provided in Section 2.2(d) hereof. Each Bank's Commitment shall
be used by its Percentage of the outstanding face amount of each
Letter of Credit upon the issuance thereof.
Each Letter of Credit shall (i) provide for
the payment of drafts in United States dollars, be presented for
honor thereunder by the beneficiary in accordance with the terms
thereof, at sight when accompanied by the documents described
therein, and (ii) otherwise be in form and substance satisfactory
to Chase as the issuer of the Letter of Credit. Upon the
issuance of any Letter of Credit, Chase shall deliver the
original of such Letter of Credit to the beneficiary thereof at
the direction of the Borrower and advise each Bank of the
issuance.
(b) Application by the Borrower for Issuance of
the Letters of Credit. The Borrower shall request Chase in
writing to issue a Letter of Credit by delivering to Chase on or
before the date hereof, in the case of a Letter of Credit to be
issued on the date hereof, or two Business Days prior to the
proposed date of issuance, in the case of all other Letters of
Credit to be issued hereunder, a Letter of Credit application, in
form and content satisfactory to Chase, specifying the account
party and completed to the satisfaction of Chase and such other
certificates, documents and other papers and information as Chase
may reasonably request. Prior to the issuance of a Letter of
Credit, Chase shall advise each Bank of the receipt of an
application.
(c) Letter of Credit Fees. The Borrower agrees
to pay the Administrative Agent for the accounts of the Banks
upon the application by the Borrower for and the issuance by
Chase of any Letter of Credit, a fee, which fee shall be equal to
the LIBOR Increment during the period the applicable Letter of
Credit is outstanding.
(d) Participation in Letters of Credit. Chase
hereby sells to each Bank, and each Bank hereby purchases from
Chase, without recourse to Chase (except as to payments to be
made by the Administrative Agent to such Bank under
Section 2.2(c)), an undivided interest in each Letter of Credit
and in each letter of credit fee payable pursuant to
Section 2.2(c), in each case equal to such Bank's Percentage
thereof.
Upon any drawing under a Letter of Credit
drawn in strict compliance with the requirements of the Letter of
Credit as determined by Chase in its sole discretion, for the
payment of which the Borrower has not otherwise made funds
available, the Administrative Agent shall notify each of the
Banks of the date of payment of the drawing and the dollar amount
of each Bank's Percentage interest therein. Such payment by
Chase under any Letter of Credit shall constitute Advances by the
Banks subject to the terms and conditions of this Agreement
pertaining thereto other than Section 3.2, and each Bank shall
make its Percentage of such drawing available to the
Administrative Agent in accordance with Section 2.1(b) hereof.
The obligation of each Bank to remit the
amount of its Advance to the Administrative Agent pursuant to a
drawing under a Letter of Credit in accordance with this
Section shall be unconditional and irrevocable under any and all
circumstances (unless the payment of such drawing was the result
of Chase's gross negligence or willful misconduct or such Letter
of Credit was issued in violation of Section 2.2(a) hereof) and
may not be terminated, suspended or delayed for any reason
notwithstanding any other provision of this Agreement, including
the occurrence and continuance of a Default or Event of Default.
(e) Obligation to Reimburse. Chase will promptly
notify by telephone the Borrower of any draft drawn pursuant to a
Letter of Credit and presented for payment and of the date Chase
intends to pay such draft; if that is the case. With respect to
any draft paid pursuant to a Letter of Credit, the Borrower
hereby agrees to pay to the Administrative Agent the amount of
such payment on the date of payment by depositing with the
Administrative Agent prior to 12:00 noon (New York time)
immediately available funds in the amount of such draft. The
failure to so deposit shall be deemed a request for an Advance in
an aggregate amount equal to the amount paid.
(f) Unconditional Obligations. In order to
induce Chase to issue the Letters of Credit and the Banks to
participate therein, the Borrower agrees that neither Chase nor
any Bank shall be responsible or liable for, and the Borrower's
unconditional obligation to reimburse the Administrative Agent
for the accounts of the Banks for amounts paid on account of
drawings honored under Letters of Credit shall not be affected by
(i) the validity, sufficiency or genuineness of any document or
instrument presented to Chase in connection with a Letter of
Credit, even if such document or instrument should in fact prove
to be in any or all respects invalid, insufficient, fraudulent or
forged, or (ii) any action taken or omitted by Chase without
gross negligence or willful misconduct in connection with making
or not making payment under the Letter of Credit.
2.3 [Intentionally Omitted]
2.4 Interest.
(a) The Credit. The Advances under the Revolving
Credit shall bear interest on the unpaid principal amount from
time to time unpaid until maturity (whether by acceleration or
otherwise) at a per annum rate of interest equal to the Base Rate
("Base Rate Loan"). The rate of interest on the Base Rate Loans
evidenced by the Revolving Note shall change simultaneously with
each change in the Prime Rate and shall change each Business Day
with any change in the Federal Funds Rate.
Subject to Sections 2.7 and 2.8 hereof, the
Borrower may elect to convert any portion of a Base Rate Loan to
a LIBOR Loan or to continue any LIBOR Loan as a new LIBOR Loan by
giving irrevocable notice of such election to the Administrative
Agent by 12:00 noon (New York time) at least three (3) Business
Days prior to the requested Conversion Date and, in the case of
the continuation of any LIBOR Loan, such conversion or
continuation shall take place on the last day of the applicable
LIBOR Period with respect to the LIBOR Loan being so continued.
The Administrative Agent shall promptly give each of the Banks
notice of the Borrower's election. Each such request to convert
or continue shall include the Rate Option, the requested
Conversion Date (which shall be a Business Day), the LIBOR Period
selected with respect to any LIBOR Loan, and the amount converted
or continued (which shall be in a principal amount of not less
than $500,000.00 and an integral multiple of $100,000.00 in the
case of conversion to or continuation as a LIBOR Loan. If no
Default nor Event of Default has occurred and is continuing at
such time, such conversion or continuation shall be made on the
requested Conversion Date, subject to the foregoing limitations
in connection with the conversion or continuation of LIBOR Loans.
The Administrative Agent shall not incur any
liability to the Borrower in acting upon telephonic notice
referred to above which the Administrative Agent believes to have
been given by a duly authorized officer or other person
authorized to and on behalf of the Borrower or for otherwise
acting under this Section 2.4(a).
(b) LIBOR Increment. The LIBOR Increment, which
is the percentage utilized in determining LIBOR, shall be
determined in accordance with the Credit Pricing Agreement.
(c) Computation of Interest. Interest shall be
computed on the basis of a 360-day year for the actual number of
days elapsed, which will result in a higher effective annual
rate. Interest shall be payable on the first day of each March,
June, September and December commencing December 1, 2000 and, in
the case of a LIBOR Loan, interest shall also be payable on the
last day of each applicable LIBOR Period, if earlier, and on any
Conversion Date.
(d) Default Rate. After maturity, whether by
acceleration or otherwise, Borrower shall pay interest at a per
annum rate equal to two percent (2%) plus the Prime Rate. In no
event shall the rate of interest exceed the maximum rate
permitted by applicable law. If Borrower pays interest in excess
of the amount permitted by applicable law, such excess shall be
applied in reduction of the principal of Advances made pursuant
to this Agreement.
(e) Late Charge. Upon failure to make any payment
of interest or principal hereunder when due, Borrower promises to
pay a late charge computed as follows:
(1) Late charges may be assessed each day on
the amount overdue based upon the Prime Rate from day to day.
The formulas for the daily late charge assessment will be as
follows:
(i) For overdue interest:
(Amount overdue) x 110% x (the Prime Rate + 2%)
365
(ii) For overdue principal:
(Amount overdue) x 10% x (the Prime Rate + 2%)
365
(2) If the sum of the late charges computed
as in (1) is less than Ten Dollars ($10.00), a minimum late
charge of Ten Dollars ($10.00) per late payment may be assessed.
The assessment and/or collection of late charges
shall in no way impair the right to pursue any other remedies
hereunder.
2.5 Prepayment.
(a) Base Rate Loans. The Borrower shall have the
right to prepay at any time without premium all or any portion of
the Advances consisting of Base Rate Loans, together with
interest on the principal so prepaid to the date of such
prepayment. Any partial prepayment of principal shall be in the
amount of $100,000.00 or an integral multiple thereof.
(b) LIBOR Loans. The Borrower shall have the
right to prepay without premium all or any portion of the
Advances consisting of LIBOR Loans on the expiration day of the
applicable LIBOR Period. If any LIBOR Loan is prepaid at any
other time, the Borrower shall, upon not less than ten (10) days
prior written notice, pay to the Administrative Agent, for the
ratable benefit of the Banks, an amount equal to (i) the interest
which would have otherwise been payable on the amount prepaid
during the remaining term of the LIBOR Period, less (ii) interest
on the amount prepaid for such term computed at an interest rate
equal to the yield-to-maturity which could be obtained on United
States Treasury obligations, purchased in the market at the time
of prepayment, having a remaining term and coupon rate comparable
to the remaining term of the LIBOR Period, and comparable to the
applicable interest rate, as determined by the Administrative
Agent in good faith, and certified to the Borrower, such
certificate to be conclusive, absent manifest error. Any partial
prepayment of principal shall be in the amount of $100,000.00 or
an integral multiple thereof.
(c) Mandatory Prepayment From Subordinated Debt.
Notwithstanding anything to the contrary contained in this
Agreement, if the Borrower incurs any Subordinated Debt, the
Borrower shall immediately use the proceeds thereof to prepay
outstanding Advances. Such proceeds shall be used first to
prepay Base Rate Loans until all Base Rate Loans are paid in full
and then to prepay LIBOR Loans. If any LIBOR Loans are so
prepaid, the Borrower shall pay to the Administrative Agent the
additional amounts set forth in subsection (b) above. Upon any
prepayment required pursuant to this subsection (c), the Borrower
shall have the option to reduce the Commitment pursuant to
Section 2.11 of this Agreement.
2.6 Use of Proceeds and Letters of Credit. The
Borrower covenants to the Banks that it will use the proceeds
advanced under this Agreement subsequent to the initial Advance
for general working capital, for loans to and investments in its
Subsidiaries and Affiliates to the extent permitted under Section
6.8 hereof and for the financing of Capital Expenditures and
Expansions, mergers, consolidations, acquisitions of stock or
assets of, or investments in a joint venture of partnership with,
any third Person permitted by Section 6.7 hereof or otherwise
consented to by the Administrative Agent with the agreement of
the Majority Banks.
2.7 Special Provisions Governing LIBOR Loans -
Increased Costs.
(a) In the event that on any LIBOR Interest
Determination Date, any Bank shall notify the Administrative
Agent that it shall have determined (which determination shall be
final, conclusive and binding) that:
(1) by reason of conditions in the London
interbank market or of conditions affecting the position of any
Bank in such market occurring after the date hereof, adequate
fair means do not exist for establishing LIBOR, or
(2) by reason of (i) any applicable law or
governmental rule, regulation, guideline or order (or any written
interpretation thereof and including any new law or governmental
rule, regulation, guideline or order but excluding any of the
foregoing relating to taxes referred to in Section 2.9 of this
Agreement) or (ii) other circumstances affecting any Bank or the
London interbank market or the position of any Bank in such
market (such as, but not limited to, official reserve
requirements), LIBOR does not represent the effective pricing to
any Bank for U.S. dollar deposits of comparable amounts for the
relevant period due to such increased costs then, the
Administrative Agent shall give a notice by telephone, confirmed
in writing, to the Borrower of such determination.
(b) Thereafter, the Borrower shall pay to the
Administrative Agent upon written request therefor, such
additional amounts as the Administrative Agent in its sole
discretion, shall reasonably determine to be required to
compensate the Bank for such increased costs. A certificate as
to such additional amounts submitted to the Borrower by the
Administrative Agent shall, absent manifest error, be final,
conclusive and binding upon all parties hereto.
(c) In lieu of paying such additional amounts as
required by this Section 2.7, the Borrower may exercise the
following options:
(1) If such determination relates only to a
conversion to a LIBOR Loan then being requested by the Borrower
pursuant to the terms hereof, the Borrower may, on such LIBOR
Interest Determination Date by giving notice by telephone to the
Administrative Agent, withdraw such request.
(2) The Borrower may, by giving notice by
telephone to the Administrative Agent require the Administrative
Agent to convert the LIBOR Loan then being requested to a Base
Rate Loan, or to convert its outstanding LIBOR Loan that is so
affected into a Base Rate Loan at the end of the then current
LIBOR Period.
2.8 Required Termination and Repayment of LIBOR Loans.
(a) In the event any Bank shall notify the
Administrative Agent that it shall have reasonably determined, at
any time (which determination shall be final, conclusive and
binding but shall be made only after consultation with the
Borrower and the Administrative Agent), that the making or
continuation of any or all of LIBOR Loans by such Bank:
(1) has become unlawful by compliance by
such Bank in good faith with any applicable law,
governmental rule, regulation, guideline or order,
or
(2) would cause such Bank severe hardship as
a result of a contingency occurring after the date
of this Agreement which materially and adversely
affects the London interbank market(such as, but
not limited to disruptions resulting from
political or economic events);
then, and in either such event, the Administrative
Agent shall on such date (and in any event as soon as possible
after making such determination) give telephonic notice to the
Borrower, confirmed in writing, of such determination,
identifying which of the LIBOR Loans are so affected.
(b) The Borrower shall, upon the termination of
the then current LIBOR Period applicable to each LIBOR Loan so
affected or, if earlier, when required by law, repay each such
affected LIBOR Loan, together with all interest accrued thereon.
(c) In lieu of the repayment required by Section
2.8(b), the Borrower may exercise the following options:
(1) If the determination by the Bank relates
only to a LIBOR Loan then being converted by the Borrower
pursuant to the terms hereof, the Borrower may, on such date by
giving notice by telephone to the Administrative Agent, withdraw
such request for conversion.
(2) The Borrower may, by giving notice by
telephone to the Administrative Agent, require the Banks to
convert the LIBOR Loan then being converted to a Base Rate Loan
or to convert any outstanding LIBOR Loan or LIBOR Loans that are
so affected into a Base Rate Loan at the end of the then current
LIBOR Period (or at such earlier time as repayment is otherwise
required to be made pursuant to section 2.7(b)). Such notice
shall pertain only to the LIBOR Loan or LIBOR Loans outstanding
or to be outstanding during each such affected LIBOR Period.
2.9 Taxes. If any taxes (other than taxes with
respect to the income of the Banks), or duties of any kind shall
be payable, or ruled to be payable, by or to any taxing authority
of or in the United States, or any foreign country, or any
political subdivision of any thereof, in respect of any of the
transactions contemplated by this Agreement (including, but not
limited to, execution, delivery performance, enforcement, or
payment of principal or interest of or under the Note or this
Agreement, or the making of a LIBOR Loan), by reason of any now
existing or hereafter enacted statute, rule, regulation or other
determination (excluding any taxes imposed on or measured by the
net income of the Banks), the Borrower will:
(1) pay on written request therefor all such
taxes or duties, including interest and penalty, if any,
(2) promptly furnish the Administrative Agent
with evidence of any such payment, and
(3) indemnify and hold the Banks and any holder
or holders of the Note harmless and indemnified against any
liability or liabilities with respect to or in connection with
any such taxes or the payment thereof or resulting from any delay
or omission to pay such taxes.
2.10 Unused Line Fee. The Borrower shall pay to the
Administrative Agent for the account of the Banks a per annum
Unused Line Fee (based on a 360 day year) on the average unused
amount of the Commitments, which Unused Line fee shall be payable
quarterly, in arrears, on the last day of each September,
December, March and June to and including the Termination Date.
The Unused Line Fee shall be computed in accordance with the
provisions of the Credit Pricing Agreement.
2.11 Reduction. The Borrower may, at any time by
written notice to the Administrative Agent state its desire to
reduce the Commitments of the Banks to any amount which is not
less than the aggregate then outstanding principal amount of
Advances and the undrawn face amount of Letters of Credit. Any
such reduction shall be pro-rata in order that the Percentage of
each Bank's Commitment is not changed. Any reductions of the
Commitments shall not be reinstated at any future date and any
partial reduction shall be in the amount of $5,000,000.00 or an
integral multiple thereof. Immediately upon receipt of such
notice by the Administrative Agent, the obligation of each of the
Banks to make Advances and to participate in Letters of Credit
hereunder shall be limited to its Commitment as reduced pursuant
to such notice.
2.12 Administrative Agent's Fee. The Borrower agrees
to pay the Administrative Agent an agent's fee annually, by
November 15 of each year, until all of the Indebtedness created
pursuant to this Agreement has been paid in full.
2.13 Payments. All payments by the Borrower under this
Agreement of interest, principal, fees and other expenses shall
be made in immediately available funds not later than 12:00 p.m.
on the due date at the Administrative Agent's Office, unless such
amount is paid by the Administrative Agent's debiting a deposit
account of the Borrower. All such payments applicable to the
Swingloans shall be remitted by the Administrative Agent to Chase
on the same Business Day. All such other payments, other than
the Administrative Agent's fee, shall be remitted by the
Administrative Agent to each of the Banks on the same Business
Day in accordance with its Percentage.
2.14 Sharing of Payments. If any Bank shall obtain any
payment or other recovery or receive any collateral (whether
voluntary, involuntary, by application of setoff or otherwise) on
account of any Advances or any participation in a Letter of
Credit in excess of its pro rata share of payments or collateral
then or therewith obtained by all Banks, such Bank shall purchase
from the other Banks such participations in Advances or Letters
of Credit, or shall provide such other Banks with the benefits of
any such collateral or the proceeds thereof as shall be necessary
to cause such purchasing Bank to share the excess payment or
other recovery ratably with each of them; provided, however, if
all or any portion of such excess payment or benefits is
thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price and benefits returned to the
extent of such recovery, without interest.
The Borrower agrees that each of the other Banks so
purchasing a portion of such Bank's interest in Advances or
participations in Letters of Credit may exercise all rights
(including, but not limited to, rights of setoff) with respect to
such portion purchased as if such other Banks were the direct
holders thereof. The Borrower agrees that each Bank shall have a
security interest in and the right to set off as against any
outstanding Advances and all other of the Borrower's liabilities
under this Agreement with respect to any deposit account or other
obligation of the Borrower or any Subsidiary.
Each of the Banks agrees that (a) if the unpaid
principal balances of the Revolving Note are not paid in full at
the close of business on the Termination Date, or (b) if the
maturity of the Revolving Note is accelerated and the Credit is
terminated in accordance with Section 7.2 hereof (the earlier of
such dates being referred to as the "Purchase Date"), the Bank or
Banks receiving payment at a rate based on the applicable
percentage(s) in excess of similar payments received by any other
Bank shall immediately give notice to the Administrative Agent of
such payment and shall purchase for cash within thirty (30)
Business Days from the Purchase Date, from any Bank receiving
payment at a lesser rate, an interest in the Revolving Credit in
such amounts so that each Bank shall own an interest in the
aggregate amount of the Revolving Credit then outstanding equal
to its Percentage, plus, if such amount is not paid by the
purchasing Bank within the specified period, interest thereon
shall accrue at the rate equal to the Federal Funds Rate for the
period commencing on the Purchase Date and ending on the actual
date of payment thereof.
2.15 Replacement Bank. The Borrower may replace any
Bank (a "Replaced Bank") by designating another bank which is
reasonably acceptable to the Administrative Agent (such Bank
being herein called a "Replacement Bank"). Simultaneously with
payment of all amounts owing to the Replaced Bank hereunder or in
connection herewith, the Replaced Bank shall assign to the
Replacement Bank in accordance with Section 10.3 and without
recourse to or warranty by, or expense to, such Replaced Bank all
of the rights and obligations of such Replaced Bank hereunder
(except for the rights as survive repayment of the Advances).
Upon such assignment, such Replaced Bank shall no longer be a
party to this Agreement or have any rights hereunder and shall be
relieved from all obligations to the Borrower, the Company, the
Administrative Agent or the Banks, and the Replacement Bank shall
succeed to the rights and obligations of such Replaced Bank.
ARTICLE III. Conditions to the Extension of Credit
3.1 Conditions to Extension of Credit. The Banks'
agreement to extend the Credit and Chase's agreement to issue
Letters of Credit or make Swingloans shall be effective only upon
fulfillment of the following conditions at the date of the
execution of this Agreement:
3.1.a. Corporate Action. The Borrower and the
Company shall have taken all necessary and appropriate corporate
action and the Boards of Directors of the Borrower and the
Company shall have adopted resolutions authorizing the Credit,
the execution and delivery of this Agreement, the Notes and the
Guaranties executed by the Borrower and the Company, as
appropriate, and the taking of all action required of the
Borrower and the Company by this Agreement; and the Borrower and
the Company shall have furnished to the Administrative Agent
copies certified as of the date of the execution of this
Agreement of such corporate resolutions and such other corporate
documents as any Bank shall reasonably request.
3.1.b. Corporate Documents. There shall have
been furnished to the Administrative Agent (a) certificates of
the Company and each Subsidiary's good standing duly issued of
recent date by an official of the jurisdiction of its
incorporation; (b) copies of the certificate of incorporation and
by-laws of the Company and each Subsidiary, certified by their
Secretaries as of the date of the execution of this Agreement;
and (c) certificates of incumbency, dated the date of the
execution of this Agreement specifying the officers of the
Company and each Subsidiary, together with their specimen
signatures.
3.1.c. Notes. The Borrower shall have executed
and delivered to each of the Banks a Revolving Note,
appropriately completed, evidencing the Borrower's obligation to
repay the Revolving Credit.
3.1.d. Guaranty. The Borrower shall furnish to
the Administrative Agent, with an executed counterpart for each
Bank, the written continuing guaranty ("Guaranty") of the Company
and each Subsidiary set forth in Schedule 3.1.d attached hereto
and made a part hereof (individually, "Guarantor Subsidiary" and
collectively, "Guarantor Subsidiaries"), such Guaranty to be in
form and content satisfactory to each of the Banks, guaranteeing
the payment of any and all indebtedness and liabilities of the
Borrower to each of the Banks or Administrative Agent, whether
now existing or hereafter incurred pursuant to this Agreement.
3.1.e. Security Agreements. The Borrower shall
furnish to the Administrative Agent, with an executed counterpart
for each Bank, a security agreement from the Borrower, Company
and each other Guarantor Subsidiary in form and content
satisfactory to the Banks granting to the Administrative Agent,
for the benefit of itself and all of the Banks, security
interests (collectively, the ASecurity Interests@) in all
Accounts, Inventory, Equipment, Investment Property, Documents,
Instruments, General Intangibles, Chattel Paper and Fixtures,
whether now owned or existing or hereafter acquired or arising,
wherever located, of the Company and each Guarantor Subsidiary
and any and all products and proceeds thereof, as continuing
collateral security for the payment of any and all indebtedness
and liabilities, whether now owed or hereafter incurred, of the
Borrower to any of the Banks and/or the Administrative Agent
arising under this Agreement or any Collateral Document. The
Borrower shall have executed and delivered and shall have caused
the Company and each other Guarantor Subsidiary to have executed
and delivered to the Administrative Agent, appropriate financing
statements to perfect the Security Interests, which Security
Interests shall at the time of the execution of this Agreement,
be superior to all other liens and security interests in such
property except Permitted Encumbrances.
3.1.f. Uniform Commercial Code Searches. The
Administrative Agent shall be in receipt of searches of the
appropriate filing records in each office where financing
statements must be filed pursuant to Section 3.1(e) in order to
confirm the priority of the Security Interests, except as
otherwise determined by all of the Banks.
3.1.g. Subsidiary Action. Each Guarantor
Subsidiary other than the Borrower (a) shall have taken all
necessary and appropriate corporate action and the Boards of
Directors of each Guarantor Subsidiary shall have adopted
resolutions authorizing the execution and delivery of the
Guaranties executed by it and the taking of all action called for
thereby, and (b) shall have furnished to the Administrative Agent
copies, certified as of the date of the execution of this
Agreement, of such corporate action and such other corporate
documents as any of the Banks shall reasonably request.
3.1.h. Opinion. Independent Counsel for the
Company and its Subsidiaries, Lippes, Silverstein, Mathias &
Wexler, LLP, shall have furnished to the Administrative Agent,
with a signed copy for each Bank, its favorable opinion, in form
and content satisfactory to each of the Banks and their counsels,
dated the date of the execution of this Agreement, as to the
matters referred to in Sections 4.1, 4.2, 4.4, 4.5 and 4.6 of
this Agreement.
3.1.i. Certificates. The Company shall have
caused to be delivered to the Administrative Agent a Compliance
Certificate appropriately completed and insurance certificates,
binders or policies evidencing compliance with Section 5.6.
3.1.j. Other Matters. All matters incidental to
the execution and delivery of this Agreement, the Notes and the
Guaranties, and all action required on the part of the Borrower,
the Company and each Subsidiary by this Agreement, shall be
satisfactory to each of the Banks and their respective counsels.
3.2 Conditions to Subsequent Extensions of Credit.
Subsequent to the satisfaction of the conditions set forth in
Section 3.1, each request to the Administrative Agent for an
Advance or to Chase for a Letter of Credit or Swingloan shall
constitute confirmation by the Borrower and the Company of all
the matters set forth in the form of the Compliance Certificate -
General in the form of Exhibit B as of the date of the Advance or
the Letter of Credit or the Swingloan in the same manner as if a
written Compliance Certificate had been delivered, and the
statements made shall be true on the date of such extension of
credit. The Banks shall not be obligated to make any Advance nor
shall Chase be obligated to issue any Letter of Credit nor make
any Swingloan if such certification is not made or if the
Administrative Agent has received written notice from any Bank
that it believes that a Default exists.
ARTICLE IV. Representations and Warranties
Each of the Borrower and the Company makes the
following representations and warranties, which shall be deemed
to be continuing representations and warranties so long as any
indebtedness of the Borrower to any of the Banks, Chase or the
Administrative Agent, including indebtedness for fees and
expenses, shall remain unpaid, any Letter of Credit shall remain
outstanding or the Commitments shall remain in effect:
4.1 Good Standing and Authority. Each of the
Borrower, the Company and each of the Subsidiaries is a
corporation, duly organized, validly existing, and in good
standing under the laws of the state of its incorporation; has
powers and authority to transact the business in which it is
engaged; is duly licensed or qualified and in good standing in
each jurisdiction in which the conduct of such business requires
such licensing or such qualification, which singly or in the
aggregate is material to the operations of the Company on a
Consolidated basis; and has all necessary power and authority to
enter, as appropriate, this Agreement and to execute, deliver and
perform this Agreement, the Notes, the Collateral Documents and
any other document executed in connection with this Agreement,
all of which have been duly authorized by all proper and
necessary corporate and shareholder action.
4.2 Valid and Binding Obligation. This Agreement, the
Notes, the Collateral Documents and any other document executed
in connection herewith have been duly executed and delivered by
the Borrower, the Company and each of the other Guarantor
Subsidiaries and constitutes the legal, valid and binding
obligations of the Borrower, the Company and each other Guarantor
Subsidiary, as the case may be, enforceable against the Borrower,
the Company or such other Guarantor Subsidiary, as the case may
be, in accordance with their respective terms.
4.3 Good Title. Each of the Borrower, the Company and
each of the other Guarantor Subsidiaries has good and marketable
title or a valid leasehold interest to all of its assets, none of
which is subject to any Lien except Permitted Encumbrances.
4.4 No Pending Litigation. There are not any actions,
suits, proceedings (whether or not purportedly on behalf of the
Borrower, the Company or any Subsidiary) or investigations
pending or, to the knowledge of the Borrower or the Company,
threatened against the Borrower, the Company or any Subsidiary or
any basis therefor, which, if adversely determined, would, in any
case or in the aggregate, materially adversely affect the
property, assets, financial condition or business of the Company
on a Consolidated basis or materially impair the right or ability
of the Borrower, the Company or any Subsidiary to carry on its
operations substantially as now conducted or anticipated to be
conducted in the future, or which question the validity of this
Agreement, the Notes, the Collateral Documents or other documents
required by this Agreement, or any action taken or to be taken
pursuant to any of the foregoing.
4.5 No Consent or Filing. No consent, license,
approval or authorization of, or registration, declaration or
filing with, any court, governmental body or authority or other
Person is required on the part of the Borrower, the Company or
any Subsidiary in connection with the valid execution, delivery
or performance of this Agreement, the Notes, the Collateral
Documents or other documents required by this Agreement or in
connection with any of the transactions contemplated thereby.
4.6 No Violations. Neither the Borrower, the Company
nor any Subsidiary is in violation of any term of its certificate
of incorporation or by-laws, or of any mortgage, borrowing
agreement or other instrument or agreement pertaining to
Indebtedness for borrowed money which might reasonably be
expected to result in a material and adverse effect, singly or in
the aggregate to the Company on a Consolidated basis, upon its
business or assets. Neither the Borrower, the Company nor any
Subsidiary is in violation of any term of any other indenture,
instrument, or agreement to which it is a party or by which it
may be bound, resulting, or which might reasonably be expected to
result, in a material and adverse effect, singly or in the
aggregate to the Company on a Consolidated basis, upon its
business or assets. Neither the Borrower, the Company nor any
Subsidiary is in violation of any order, writ, judgment, injunc
tion or decree of any court of competent jurisdiction or of any
statute, rule or regulation of any competent governmental
authority which might reasonably be expected to result in a
material and adverse effect upon its business or assets. The
execution and delivery of this Agreement, the Notes, the
Collateral Documents and other documents required by this
Agreement and the performance of all of the same is and will be
in compliance with the foregoing and will not result in any
violation or result in the creation of any Lien upon any
properties or assets. There exists no fact or circumstance not
disclosed in this Agreement, in the documents furnished in
connection herewith or the Company's filings under the Securities
Exchange Act of 1934, which materially adversely affects or in
the future (so far as the Borrower or the Company can now
foresee) may materially adversely affect the condition, business
or operations of the Company on a Consolidated basis, except
those facts and circumstances which generally affect all Persons
engaged in the Borrower's or the Company's lines of business.
4.7 Financial Statements. The Company has made
available to each Bank audited financial statements of the
Company on a Consolidated basis showing its financial condition
as of December 31, 1999 and its cash flows for the fiscal year
then ended. All financial statements have been prepared in
accordance with GAAP consistently applied throughout the
intervals involved. Since the date of the last such financial
statements to the date of execution hereof, there have not been
any material adverse changes in the financial condition of the
Company from that disclosed in such financial statements. None
of the property or assets shown in the financial statements
delivered to the Banks has been materially adversely affected as
the result of any fire, explosion, accident, flood, drought,
storm, earthquake, condemnation, requisition, statutory or
regulatory change, act of God, or act of public enemy or other
casualty, whether or not insured.
4.8 Tax Returns. The Borrower and the Company have
duly filed all federal and other tax returns required to be filed
for themselves and all Subsidiaries and have duly paid all taxes
required by such returns.
4.9 Federal Regulations. Neither the Borrower, the
Company nor any Guarantor Subsidiary is engaged principally, or
as one of its important activities, in the business of extending
or arranging for the extension of credit for the purpose of
purchasing or carrying "margin stock" (as defined in
Regulations G and U issued by the Board of Governors of the
Federal Reserve System). Likewise, neither the Borrower, the
Company nor any Guarantor Subsidiary owns nor intends to carry or
purchase any such "margin stock", and the Borrower will not use
the proceeds of any Advance to purchase or carry (or refinance
any borrowing the proceeds of which were used to purchase or
carry) any such "margin stock". Neither the Borrower, the
Company nor any Guarantor Subsidiary is an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended, or a "holding company," or a "subsidiary company" of a
"holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
4.10 ERISA Matters. No Plan has been terminated or
partially terminated or is insolvent or in reorganization, nor
have any proceedings been instituted to terminate or reorganize
any Plan; neither the Borrower, the Company nor any Subsidiary
has withdrawn from any Plan in a complete or partial withdrawal,
nor has a condition occurred which if continued would result in a
complete or partial withdrawal; neither the Borrower, the Company
nor any Subsidiary has incurred any withdrawal liability,
including contingent withdrawal liability, to any Plan pursuant
to Title IV of ERISA; neither the Borrower, the Company nor any
Subsidiary has incurred any liability to the Pension Benefit
Guaranty Corporation other than for required insurance premiums
which have been paid when due; no Reportable Event has occurred
and is continuing; and no Plan or other "employee pension benefit
plan" as defined in Section 3(2) of ERISA to which the Borrower,
the Company or any Subsidiary is a party has an "accumulated
funding deficiency" (whether or not waived) as defined in
Section 302 of ERISA or in Section 412 of the Code. Each Plan
and each other "employee benefit plan" as defined in Section 3(3)
of ERISA to which the Borrower, the Company or any Subsidiary is
a party is in substantial compliance with ERISA, and no such
plan, nor any administrator, trustee or fiduciary thereof, to the
best knowledge of the Borrower and the Company, has engaged in a
prohibited transaction described in Section 406 of ERISA or in
Section 4975 of the Code.
4.11 Subsidiaries. The Borrower and the Company have
no Subsidiaries except as listed in Schedule 4.11 of this
Agreement.
4.12 Compliance. The present conduct of the business
and operations of the Borrower, the Company and each Guarantor
Subsidiary and the present ownership and use of each asset of the
Borrower, the Company and each Subsidiary are in compliance in
all material respects with each applicable statute, regulation
and other law (including, but not limited to, the Environmental
Protection Act, the Occupational Health and Safety Act, the
Comprehensive Environmental Response, Compensation and Liability
Act and the Resource Conservation and Recovery Act), except where
non-compliance would not result in a material adverse effect,
singly or in the aggregate to the Company on a Consolidated
basis, upon its business or assets. Each authorization,
approval, permit, consent, franchise and license from, each
registration and filing with, each declaration, report and notice
to, and each other act by or relating to, any Person necessary
for the present or anticipated conduct of the business or
operations of, or for the present or anticipated ownership or use
of any asset, material singly or in the aggregate to the Company
on a Consolidated basis has been duly obtained, made, given or
done, and is in full force and effect.
4.13 Fiscal Year. The fiscal year of the Borrower and
the Company is the year ending December 31.
4.14 Default. There does not exist any Default or
Event of Default.
4.15 Indebtedness for Borrowed Money. The Borrower,
the Company and each of the Guarantor Subsidiaries have no
Indebtedness arising from the borrowing of any money, except for
Indebtedness committed or outstanding on the date of this
Agreement pursuant to any lease, loan or credit facility fully
and accurately described in Schedule 4.15 to this Agreement.
4.16 Securities. Each outstanding share of stock,
debenture, bond, note and other security of the Borrower, the
Company and each Subsidiary has been validly issued in full
compliance with each statute, regulation and other law, and, if a
share of stock, is fully paid and nonassessable.
4.17 Inventory Locations. All of the Borrower=s, the
Company=s and each of the Subsidiaries= Inventory is located at
the locations set forth in Schedule 4.17 attached hereto and made
a part hereof.
4.18 Environmental Matters.
(a) No above ground or underground storage tanks
containing Hazardous Substances are located on any property
owned, leased or operated by the Company or any Subsidiary,
except for storage tanks containing diesel fuel, gasoline or
waste oil, which tanks are in compliance with all applicable
Environmental Laws. No above ground or underground storage tanks
containing Hazardous Substances have been located on any such
property except for tanks which were removed in compliance with
applicable Environmental Laws.
(b) No property owned, leased or operated by the
Company or any Subsidiary is or has been used for the storage,
treatment, generation, transportation, processing, handling,
production or disposal of any Hazardous Substance or as a
landfill or other waste disposal site or for military,
manufacturing or industrial purposes or for the storage of
petroleum or petroleum based products, in violation of any law,
except as disclosed on Schedule 4.18.
(c) To the knowledge of the Borrower and/or the
Company, no Release of a Hazardous Substance, which would be in
violation of any law is occurring or is threatened on, at, from
or near any property owned, leased or operated by the Company or
any Subsidiary, which through soil, subsoil, bedrock, surface
water or groundwater migration is located on the property owned,
leased or operated by the Company or any Subsidiary, except as
disclosed on Schedule 4.18.
(d) Neither the Company nor any Subsidiary is
subject to any existing, pending or, to the knowledge of the
Company or Borrower, threatened suit, claim, notice of violation
or request for information under any of the Environmental Laws,
except as disclosed on Schedule 4.18.
(e) The Company and each Subsidiary are in
compliance with all Environmental Laws to the effect that any
violation would not have a material adverse effect upon the
business or operations of the Company on a Consolidated basis.
(f) All Environmental Permits have been obtained
or applied for and are in full force and effect.
(g) There are no agreements, consent orders,
decrees, judgments, license or permit conditions or other orders
or directives of any federal, state or local court, governmental
agency or authority relating to the past, present or future
ownership, use, operation, sale, transfer or conveyance of any
property owned, leased or operated by the Company or any
Subsidiary which require any change in condition or any work,
repairs, construction, containment, clean up, investigation,
study, removal or other remedial action or capital expenditures.
ARTICLE V. Affirmative Covenants
During the term of this Agreement, and so long
thereafter as any indebtedness of the Borrower to any of the
Banks, Chase or the Administrative Agent, including any
indebtedness for fees and expenses, shall remain unpaid, any
Letter of Credit shall remain outstanding or the Commitments
shall remain in effect, the Borrower and the Company, unless
written consent of the Administrative Agent is obtained, will:
5.1 Payments. Cause the Borrower to punctually pay or
cause to be paid the principal of and interest on all
Indebtedness and all fees incurred by it pursuant to this
Agreement in the manner set forth in this Agreement.
5.2 Future Financial Statements. Furnish to each of
the Banks (a) within ninety (90) days after and as at the close
of each fiscal year, a Consolidated balance sheet and
Consolidated statements of operations and earnings and changes in
financial position of the Company and all Subsidiaries
(including, without limitation, the Borrower), each examined and
reported upon by an independent certified public accounting firm
reasonably satisfactory to the Banks, and prepared in accordance
with GAAP, which report shall not contain any qualification or
disclaimer of opinion by reason of audit limitations imposed by
Borrower or Company, together with Compliance Certificates in the
forms of Exhibits A and B certified by an appropriate financial
officer of the Borrower and the Company; (b) promptly, after
preparation, copies of all such proxy statements, financial
statements and reports which the Company sends to its
stockholders, and copies of all regular, periodic and special
reports, as well as all registration statements, which the
Company files with the Securities and Exchange Commission,
including, but not limited to, Forms 10-K and 10-Q; (c) promptly
after the filing thereof with the Pension Benefit Guaranty
Corporation, a copy of each annual report filed with respect to
each Plan; (d) within forty-five (45) days after and as at the
close of each of its fiscal quarters of each year, a Consolidated
and consolidating balance sheet and related Consolidated and
consolidating statement of operations and earnings and changes in
financial position of the Company and all Subsidiaries
(including, without limitation, the Borrower) for the previous
fiscal quarter and from the beginning of the fiscal year to the
end of such fiscal quarter, except consolidating financial
statements shall only be required as of and for the period ending
at the close of a fiscal year, together with comparisons to the
previous year, if appropriate, and to budget projections,
prepared by the Company internally in accordance with GAAP, and
certified by an appropriate financial officer of Borrower and
Company, together with a Compliance Certificate - Financial
Covenants in the form of Exhibit A; (e) any and all information
regarding Borrower's and the Company's business, condition or
operations, financial or otherwise, which is furnished to any
other creditor, upon the request of the Banks; and (f) such
additional information, books, records, reports or statements as
the Administrative Agent or any of the Banks may from time to
time reasonably request regarding the financial and business
affairs of the Borrower, the Company and each Subsidiary, all
prepared in form and detail satisfactory to the Banks.
5.3 Books and Records. Maintain true and complete
records and books in accordance with generally accepted
accounting principles consistently applied including, without
limiting the generality of the foregoing, appropriate reserves
for possible losses and liabilities and notify each Bank promptly
in writing of any proposed change in the location at which such
books and records are maintained.
5.4 Corporate Standing. Maintain, and cause each
Subsidiary to maintain, its corporate existence in good standing
except any Subsidiary may merge into or consolidate with the
Company or any other Subsidiary so long as the Administrative
Agent is thereafter promptly notified of such merger or
consolidation, and such Subsidiary has executed and delivered
Collateral Documents in favor of the Administrative Agent for the
benefit of the Banks (to the extent required by Section 3.1.d and
Section 3.1.e), and remains or becomes duly licensed or qualified
and in good standing in each jurisdiction in which the conduct of
its business requires such qualification or licensing.
5.5 Discharge of Obligations. Cause to be paid and
discharged all obligations when due and all lawful taxes,
assessments and governmental charges or levies imposed upon the
Borrower, the Company or any Subsidiary, or upon any property,
real, personal or mixed, belonging to the Borrower, the Company
or any Subsidiary, or upon any part thereof, before the same
shall become in default, as well as all lawful claims for labor,
materials and supplies which, if unpaid, might become a lien or
charge upon the property or any part of it. Notwithstanding the
previous sentence, neither the Borrower, the Company nor any
Subsidiary shall be required to cause to be paid and discharged
any obligation, tax, assessment, charge, levy or claim so long as
its validity is contested in the normal course of business and in
good faith by appropriate and timely proceedings and the
Borrower, the Company or any Subsidiary, as the case may be, sets
aside on its books adequate reserves with respect to each tax,
assessment, charge, levy or claim so contested, nor shall the
Borrower, the Company nor any Subsidiary be required to pay or
discharge any trade liability which is not past its stated due
date by more than thirty (30) days.
5.6 Insurance. (a) Keep, and cause each
Subsidiary to keep, all its property so
insurable insured at all times with responsible insurance
carriers satisfactory to each of the Banks against fire, theft
and other risks in coverage, form and amount satisfactory to each
of the Banks; (b) keep, and cause each Subsidiary to keep,
adequately insured at all times in reasonable amounts with
responsible insurance carriers against liability on account of
damage to persons or property and under all applicable worker's
compensation laws; (c) promptly deliver to the Administrative
Agent certificates of insurance or any of those insurance
policies required to be carried pursuant hereto, with appropriate
endorsements designating the Administrative Agent for the benefit
of the Banks as their interests may appear as a named insured or
lenders loss payee as requested by the Administrative Agent; and
(d) cause each such insurance policy to contain a thirty (30) day
notice of cancellation or material change in coverage provision
satisfactory to the Administrative Agent.
5.7 Examinations. Permit the Banks or their agents at
all reasonable times to visit and inspect any and all properties
of Borrower, Company or any Guarantor Subsidiary and to examine
and make extracts from or copies of any of Borrower's, Company's
or its Guarantor Subsidiary's books, ledgers, reports,
correspondence and other records, and discuss their affairs,
finances and accounts with officers of Borrower, Company and each
Guarantor Subsidiary.
5.8 Litigation. Promptly notify each of the Banks in
writing as soon as the Borrower or Company has knowledge thereof,
of the institution or filing of any litigation, action, suit,
claim, counterclaim, or administrative proceeding against, or
investigation of, the Borrower, the Company or any Subsidiary to
which the Borrower, the Company or any Subsidiary is a party by
or before any regulatory body or governmental agency (a) the
outcome of which involves more than $2,000,000.00 singularly or
cumulatively, except for litigation in which the contingent
liability is fully covered by insurance, or (b) which questions
the validity of this Agreement, the Notes, any of the Collateral
Documents or any action taken or to be taken pursuant to any of
the foregoing; and furnish or cause to be furnished to any Bank
such information regarding the same as such Bank may request.
5.9 Judgments. Promptly notify each of the Banks
in writing as soon as the
Company or Borrower has knowledge thereof, of any judgment, order
or award of any court, agency or other governmental agency or any
arbitrator, (a) the outcome of which may materially and adversely
affect the finances or operations of the Borrower, the Company or
any Subsidiary or the Company's or Borrower's ability to fulfill
its obligations hereunder or which involves more than
$1,000,000.00 unless adequately covered by insurance, or
(b) renders invalid this Agreement, the Notes, any of the
Collateral Documents or any action taken or to be taken pursuant
to any of the foregoing, and furnish or cause to be furnished to
any Bank such information regarding the same as such Bank may
request.
5.10 Fair Labor Standards Act. Comply with, and cause
each Subsidiary to comply with, the provisions of the Fair Labor
Standards Act of 1938, as amended.
5.11 Notice. Promptly notify the Administrative Agent
in writing with full details of any Default or Event of Default,
or which might materially and adversely affect the financial
condition or operations of the Borrower, the Company or any
Guarantor Subsidiary.
5.12 Environmental Compliance.
(a) Comply with all Environmental Laws.
(b) Not cause or permit any change to be made in
the present or intended use of any property owned, leased or
operated by the Company or any Subsidiary which would (i) involve
the storage, treatment, generation, transportation, processing,
handling, production or disposal of any Hazardous Substance or
the use of any such property as a landfill or other waste
disposal site or for the storage of petroleum or petroleum based
products (except in compliance with applicable Environmental
Laws), (ii) violate any applicable Environmental Laws, or (iii)
constitute non-compliance with any Environmental Permit.
(c) Deliver promptly to each of the Banks
(i) copies of any documents received from the United States
Environmental Protection Agency or any state, county or municipal
environmental or health agency concerning the Company's
operations except documents of general applicability; and
(ii) copies of any documents submitted by the Company to the
United States Environmental Protection Agency or any state,
county or municipal environmental or health agency concerning its
operations, except submissions in the ordinary course of
business.
ARTICLE VI. Negative Covenants
During the term of this Agreement and so long
thereafter as any of the Indebtedness of the Borrower to any of
the Banks, Chase or the Administrative Agent, including any
Indebtedness for fees and expenses, shall remain unpaid, any
Letter of Credit shall remain outstanding or the Commitments
shall remain in effect, neither the Borrower, the Company nor any
of the Guarantor Subsidiaries, without prior written consent of
the Administrative Agent, will:
6.1 Business Operations. Make or permit to be made
any material change in the character of its business or
operations.
6.2 Borrowed Money. Create, incur or suffer to exist
or assume any Indebtedness for money borrowed, directly or
indirectly, other than (i) Subordinated Debt; and (ii) existing
Indebtedness and existing accommodations for Indebtedness as set
forth on Schedule 4.15/6.2 attached hereto.
6.3 Guaranties. Guarantee, endorse or otherwise be or
become liable or contingently liable in connection with the
obligations or Indebtedness of any other Person, including any
Subsidiary, directly or indirectly, except (i) as an endorser of
instruments for the payment of money deposited to its bank
account for collection in the ordinary course of business;
(ii) the Company and the Borrower may guaranty certain
obligations, which guaranties were acquired or assumed when the
Company acquired the stock of Brazing Concepts Company; (iii) the
Company and/or the Borrower may guaranty obligations of any
Subsidiary to Third Persons not to exceed $10,000,000.00 in the
aggregate at any time; and (iv) the Company may guaranty certain
IRB obligations of Solar Group, Inc. in an aggregate principal
amount not to exceed $340,000.00.
6.4 Liens. Create, incur, assume or suffer to exist
any Lien upon any of its property, assets, income or profits,
whether now owned or hereafter acquired, or pledge or encumber
any assets, except (i) in favor of the Administrative Agent for
the benefit of itself and the Banks; and (ii) in favor of any
Bank or other third Person as listed in Schedule 6.4. Borrower
has not, and so long as this Agreement is in effect, will not,
enter into any covenant or agreement with any other person or
entity that prohibits the granting or existence of a lien in the
personal or real property of Borrower in favor of the
Administrative Agent, as administrative agent and for the benefit
of itself and the Banks.
6.5 Accumulated Funding Deficiency. Incur (i) any
accumulated funding deficiency within the meaning of ERISA equal
to five (5) percent or more of Consolidated Tangible Net Worth;
or (ii) any liability of comparable size to the Pension Benefit
Guaranty Corporation.
6.6 Compliance with Law. Violate any law or
regulation, order, writ, injunction or decree of any court or
governmental instrumentality or breach any agreement to which
Borrower, Company or any Subsidiary is subject or in default
thereunder, which violation or breach would have a material
adverse effect on the Company on a Consolidated basis.
6.7 Expansions, Mergers, Acquisitions and Joint
Ventures. Enter into any Expansion, or merge into or consolidate
with, exchange or acquire the stock or assets of, or enter into
any joint venture or partnership with, any third Person, except
(i) any Subsidiary may merge into or consolidate with the Company
or any other Subsidiary so long as the Administrative Agent is
thereafter promptly notified of such action and such other
Subsidiary has executed and delivered a Guaranty in favor of the
Administrative Agent for the benefit of itself and the Banks to
the extent required by Section 3.1.d and a Security Agreement in
favor of the Administrative Agent, for the benefit of itself and
the Banks, to the extent required by Section 3.1.e; and (ii) the
Company or any Subsidiary may enter into an Expansion, may merge
or consolidate with, acquire the stock or assets of, or enter
into a joint venture or partnership with, any third Person if (a)
the Administrative Agent is thereafter promptly notified of such
action, (b) the Company, the Borrower or the applicable
Subsidiary is the surviving corporation, (c) immediately
thereafter and after giving effect thereto, no Default or Event
of Default exists, (d) the investments in such Expansions, joint
ventures, partnerships and the book value of the assets of the
third Person being merged or consolidated, together with the
purchase price of the stock or assets being acquired, do not
exceed $20,000,000.00 in the aggregate throughout the entire
period the Credit is outstanding (plus $11,000,000 which may be
used for a previously approved acquisition), (e) the third Person
with which the Company, the Borrower or such Subsidiary merges,
or which the Company, the Borrower or any Subsidiary acquires, is
in a business of a character already performed by the Company,
the Borrower or such Subsidiary, as applicable, or of a type
reasonably related thereto, and (f) the third Person being merged
or consolidated with, or acquired by, the Company, the Borrower
or such Subsidiary has executed and delivered a Guaranty in favor
of the Administrative Agent, for the benefit of itself and the
Banks, to the extent required by Section 3.1.d and a Security
Agreement to the Administrative Agent, for the benefit of itself
and the Banks, to the extent required by Section 3.1.e.
6.8 Loans and Advances. Make any loans or advances to
any Person, except (i) trade credit extended in the ordinary
course of business; (ii) advances made in the usual course of
business to officers and employees for travel and other out-of-
pocket expenses incurred by them on behalf of Borrower, the
Company or any Subsidiaries in connection with their business;
(iii) the Borrower and the Company may advance amounts from time
to time to each other or to any Subsidiary, for working capital
purposes in the ordinary course of business and for other
purposes permitted under the other provisions of this Agreement
which would not be in violation of any of the terms or provisions
of this Agreement and (iv) advances to Persons not in excess of
$10,000,000.00 in the aggregate at any one time outstanding,
provided such Person is in a business of a character reasonably
related to the business or operations of the Company or Borrower.
6.9 Subsidiaries. In the case of Borrower, organize
or cause to exist any Subsidiaries (other than those Subsidiaries
listed on Schedule 4.11), unless, upon the request of the Banks,
such entity executes a guaranty and security agreement in the
form of the Collateral Documents executed by each Guarantor
Subsidiary pursuant to Section 3.1.d and Section 3.1.e.
6.10 Dividends. In the case of Company, upon the
occurrence of and during the existence of a Default or an Event
of Default, declare or pay dividends or make any capital
distributions.
6.11 Voting Stock. In the case of Company, sell,
convey, transfer, assign, pledge or otherwise encumber any of the
voting stock of Borrower or any other Subsidiary to any Person.
6.12 Sale of Assets. Convey, sell, transfer, lease or
sell and lease back all or a substantial portion of its property,
assets, or business to any other Person, except for sales of
Inventory in the ordinary course of business. For purposes of
this Section 6.12, "substantial portion" shall mean any and all
purchases or transfer prices in excess of five (5%) percent of
the Company's Tangible Net Worth on a Consolidated basis in the
aggregate in any one fiscal year, and any transaction shall be
permissible only if no Default shall occur as a result of the
transaction.
6.13 Lease Rentals. Pay, in the case of the Company on
a Consolidated basis, rentals under any operating or true lease
in excess of $15,000,000.00 in the aggregate during any fiscal
year.
6.14 [Intentionally omitted]
6.15 Interest Coverage Ratio. Permit, in the case of
the Company on a Consolidated basis, the ratio of Earnings before
Taxes and Interest plus depreciation and amortization minus
Capital Expenditures (excluding Capital Expenditures made in
connection with permitted acquisitions) to interest payable on
Total Liabilities, calculated on an annual rolling basis of four
fiscal quarters, to be less than 3.0 to 1.0 as of the last day of
any fiscal quarter.
6.16 Net Worth. Permit, in the case of the Company on
a Consolidated basis, the Net Worth (a) as of the last day of any
fiscal quarter to be less than $120,000,000 plus 50% of
Cumulative Net Income (as defined below). Cumulative Net Income
means net income of the Company on a Consolidated basis from
June 30, 1997 through the end of the fiscal quarter for which the
calculation of Net Worth is being made.
6.17 Funded Debt/EBITDA. Permit, in the case of the
Company on a Consolidated basis, (a) the ratio of Funded Debt (as
defined below) to Earnings before Interest and Taxes plus
Depreciation and Amortization ("EBITDA") as of the last day of
any fiscal quarter, to be greater than 4.0 to 1.0 or (b) the
ratio of Senior Debt (as defined below) to EBITDA, as of the last
day of any fiscal quarter from the date hereof through March 31,
2001, to be greater than 3.25 to 1.0 or as of the last day of any
fiscal quarter thereafter, to be greater than 3.0 to 1.0, such
calculations to be based on an annual rolling basis of four
fiscal quarters.
"Funded Debt" means debt for money borrowed which is bearing
interest. "Senior Debt" means Funded Debt which is not
Subordinated Debt. For the purposes of calculating this
covenant, upon the consummation of a permitted acquisition, up to
12 month historical EBITDA of the acquired entity shall be
included in the calculation of the ratio, subject to the Banks'
review and approval, in their discretion, of such acquired
entity's financial information provided, however, such historical
EBITDA shall only be included in the calculation of Funded Debt
if the applicable acquired entity=s EBITDA is not included in the
Consolidated EBITDA of the Company for the applicable month.
6.18 Current Ratio. Permit at any time, in the case of
the Company on a Consolidated basis, the ratio of Current Assets
to Current Liabilities to be less than 2.0 to 1.0.
ARTICLE VII. Default
7.1 Events of Default. The occurrence of any one or
more of the following events shall constitute an event of default
(individually, "Event of Default," or, collectively, "Events of
Default"):
(a) Nonpayment. Nonpayment after the same
becomes due whether by acceleration or otherwise of principal of
or interest on the Notes or of any fee or premium provided for
hereunder.
(b) Negative Covenants. Default in the
observance of any of the covenants or agreements of the Borrower
or the Company contained in Article VI.
(c) Other Covenants. Default in the observance
of any of the covenants or agreements of the Borrower or the
Company contained in this Agreement, other than those specified
in Article VI or Section 5.1 hereof, which is not remedied within
twenty (20) days after notice thereof by the Administrative Agent
to the Borrower and the Company.
(d) Voluntary Insolvency Proceedings. If the
Company or any Subsidiary (i) shall file a petition or request
for liquidation, reorganization, arrangement, adjudication as a
bankrupt, relief as a debtor or other relief under the
bankruptcy, insolvency or similar laws of the United States of
America or any state or territory thereof or any foreign
jurisdiction, now or hereafter in effect; (ii) shall make a
general assignment for the benefit of creditors; (iii) shall
consent to the appointment of a receiver or trustee for the
Company or any Subsidiary or any of the Company's or any
Subsidiary's assets, including, without limitation, the
appointment of or taking possession by a "custodian" as defined
in the federal Bankruptcy Code; (iv) shall make any, or send
notice of any intended, bulk sale; or (v) shall execute a consent
to any other type of insolvency proceeding (under the federal
Bankruptcy Code or otherwise) or any formal or informal
proceeding for the dissolution or liquidation of, or settlement
of claims against or winding up of affairs of, the Company or any
Subsidiary.
(e) Involuntary Insolvency Proceedings. The
appointment of a receiver, trustee, custodian or officer
performing similar functions for the Company or any Subsidiary or
any of the Company's or any Subsidiary's assets, including,
without limitation, the appointment of or taking possession by a
"custodian" as defined in the federal Bankruptcy Code; or the
filing against the Company or any Subsidiary of a request or
petition for liquidation, reorganization, arrangement,
adjudication as a bankrupt or other relief under the bankruptcy,
insolvency or similar laws of the United States of America or any
state or territory thereof or any foreign jurisdiction, now or
hereafter in effect; or the institution against the Company or
any Subsidiary of any other type of insolvency proceeding (under
the federal Bankruptcy Code or otherwise) or of any formal or
informal proceeding for the dissolution or liquidation of,
settlement of claims against or winding up of affairs of the
Company or any Subsidiary, and the failure to have such
appointment vacated or such filing, petition or proceeding
dismissed within ninety (90) days after such appointment, filing
or institution.
(f) Representations. If any certificate,
statement, representation, warranty or financial statement
furnished by or on behalf of the Company or any Subsidiary
pursuant to or in connection with this Agreement (including,
without limitation, representations and warranties contained
herein and in the Collateral Documents) or as an inducement to
the Banks to enter into this Agreement or any other lending
agreement with the Borrower, the Company or its other
Subsidiaries shall prove to have been false in any material
respect at the time as of which the facts therein set forth were
represented, or to have omitted any substantial contingent or
unliquidated liability or claim against the Company or any
Subsidiary required to be stated therein, or if on the date of
the execution of this Agreement there shall have been any
materially adverse change in any of the facts disclosed by any
such statement or certificate, which change shall not have been
disclosed by the Company or the Borrower to all of the Banks at
or prior to the time of such execution.
(g) Other Indebtedness and Agreements.
Nonpayment by the Borrower, the Company or any other Subsidiary
of any Indebtedness (other than as evidenced by the Notes) owing
by the Borrower, the Company or any other Subsidiary when due
(or, if permitted by the terms of the applicable document, within
any applicable grace period), whether such Indebtedness shall
become due by scheduled maturity, by required prepayment, by
acceleration, by demand or otherwise, or failure to perform any
term, covenant or agreement on its part to be performed under any
agreement or instrument (other than this Agreement and the
Collateral Documents) evidencing or securing or relating to any
Indebtedness owing by the Borrower, the Company or any other
Subsidiary when required to be performed if the effect of such
failure is to accelerate or to permit the holder to accelerate
the maturity of such Indebtedness.
(h) Judgments. If any judgment or judgments in
excess of $500,000.00 (other than any judgment for which it is
fully insured) against the Borrower, the Company or any other
Subsidiary remains unpaid, unstayed on appeal, undischarged,
unbonded or undismissed for a period of thirty (30) days after
entry thereof.
(i) Pension Default.
i. The Company or any of its Subsidiaries
(or any officer or director thereof) shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan,
ii. any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), shall exist with respect to any
Plan,
iii. with respect to any Multiemployer Plan,
the Company or any Commonly Controlled Entity fails to make a
contribution required to be made thereto, or withdraws therefrom,
where in either event the liability of the Company or such
Commonly Controlled Entity is in excess of $250,000.00,
iv. a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to
terminate, any Plan which is not a Multiemployer Plan, which
Reportable Event or institution of proceedings is, in the
reasonable opinion of any Bank, likely to result in the
termination of such Plan for purposes of Title IV of ERISA and,
in the case of a Reportable Event, the continuance of such
Reportable Event unremedied for ten (10) days after notice of
such Reportable Event pursuant to Section 4043(a), (c) or (d) of
ERISA is given or the continuance of such proceedings for ten
(10) days after commencement thereof, as the case may be,
v. any Plan shall terminate for purposes of
Title IV of ERISA, or
vi. any other similar event or condition
shall exist which, together with all other events or conditions
in clauses i. through vi. above, if any, would subject the
Company or any of its Subsidiaries to any tax, penalty or other
liabilities under ERISA in the aggregate material in relation to
the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
(j) Collateral Documents. The occurrence of an
event of default or breach of any term, covenant or provision of
any Collateral Documents.
(k) Change of Control. Any Person or related
Persons (other than members of the Kenneth Lipke family, their
heirs or estates or trusts for the benefit of members of the
Kenneth Lipke family) shall own 55% or more of outstanding
capital stock of the Company or a sufficient number of the shares
of the outstanding capital stock of the Company to elect a
majority of the Company's board of directors.
7.2 Effects of an Event of Default.
(a) Upon the happening of one or more Events of
Default (except a default with respect to the Borrower under
either Section 7.1(d) or 7.1(e) hereof), the Administrative
Agent, shall upon the written direction of the Majority Banks and
by notice to the Borrower declare the principal of the Notes then
outstanding to be immediately due and payable, together with all
interest thereon and fees and expenses accruing under this
Agreement and/or declare the Commitments of the Banks to be
canceled. Upon any acceleration of the principal of the Notes,
the then outstanding balance shall become immediately due and
payable without presentation, demand or further notice of any
kind to the Borrower. Upon any cancellation of the Commitments
set forth in this Agreement, any obligations the Banks may have
to make Advances or to issue Letters of Credit or make Swingloans
shall be immediately canceled.
(b) Upon the happening of one or more Events of
Default under Section 7.1(d) or 7.1(e) hereof with respect to the
Borrower, the Commitments shall be canceled immediately,
automatically and without notice, and the Notes then outstanding
shall become immediately due and payable without presentation,
demand or notice of any kind to the Borrower.
(c) Upon the happening of any Event of Default,
the Administrative Agent shall then exercise such rights and
remedies specified under this Agreement, the Notes and the
Collateral Documents or under applicable law which it, but only
with the written consent of the Majority Banks, deems appropriate
under the circumstances in order to enforce such documents.
(d) Upon the happening of any Event of Default,
the Administrative Agent may, and upon the request of the
Majority Banks shall, require the Borrower to provide to the
Administrative Agent for the benefit of itself and the Banks cash
collateral in an amount equal to face amount of issued and
unexpired Letters of Credit available for drawings.
(e) Upon the happening of any Event of Default,
the principal balances of any Swingloans shall be repaid to
Administrative Agent for the account of Chase by the making of an
Advance by the Banks in an amount equal to the unpaid principal
balances of the Swingloans, except in the case of the occurrence
of an Event of Default under subsection 7.1(d) or 7.1(e) after
which each of the Banks other than Chase shall purchase a
participating interest in the unpaid principal balances of the
Swingloans equal to its Percentage.
ARTICLE VIII. Relationship of Chase and the Administrative
Agent and the Banks
8.1 Appointment and Authorization. Each Bank hereby
appoints The Chase Manhattan Bank as the Administrative Agent to
act as Administrative Agent in connection with the administration
of the Credit and the Collateral Documents and for such purpose,
subject to specific restrictions herein including Sections 7.2
and 8.3, irrevocably authorizes the Administrative Agent to take
such action and to exercise such rights, powers and discretions
as are specifically delegated to the Administrative Agent in this
Agreement and the Collateral Documents, together with all rights,
powers and discretions as are reasonably incidental thereto,
including, without limitation, the power to execute financing or
similar statements or notices and other related documents
relating to the transactions contemplated by the Collateral
Documents. The Administrative Agent may perform any of its
functions and duties under this Agreement or the Collateral
Documents for the benefit of all the Banks by or through any
agents or any of its directors, officers or employees. In
performing any of its functions and duties under this Agreement
or the Collateral Documents, the Administrative Agent shall not
be deemed to be acting as a trustee for, or partner of, any Bank
or to have assumed any relationship of agency, trust or
partnership with or for the Borrower. In administering the
Letters of Credit, Chase will use the same degree of care and
skill as it exercises in the administration of letters of credit
in which no participations are sold, but it shall not be under
any liability to any Bank except for its own gross negligence or
willful misconduct and except as stated in Section 2.2(d). Chase
agrees that it will honor each drawing under a Letter of Credit
in strict compliance with the requirements of the Letter of
Credit under which it is drawn.
8.2 No Other Duties. Neither Chase nor the
Administrative Agent shall have any duties or obligations other
than those expressly provided for in this Agreement and the
Collateral Documents, and neither Chase, the Administrative
Agent, nor any of their directors, officers, employees or agents,
shall be liable for any action taken or omitted to be taken in
connection with this Agreement, the Collateral Documents, and
other documents related thereto, the negotiation, preparation or
execution thereof, or in connection with the syndication,
implementation or administration of the Credit, the Collateral
Documents, unless directly resulting from Chase's, the
Administrative Agent's, or such directors', officers', employees'
or agents' gross negligence or willful misconduct. The duties of
the Administrative Agent shall be mechanical and administrative
in nature; the Administrative Agent shall be responsible to all
the Banks for the filing and refiling of financing statements to
perfect and to continue the perfection of the Security Interests;
the Administrative Agent shall not, by reason of this Agreement
or the Collateral Documents, have a fiduciary relationship in
respect of any Bank; and nothing in this Agreement or the
Collateral Documents, expressed or implied, is intended or shall
be construed to impose upon Chase or the Administrative Agent any
obligations in respect of this Agreement or any document in
connection herewith or the Collateral Documents except as
expressly set forth herein in such documents and this Agreement.
8.3 Copies and Notice of Event of Default or Default.
The Administrative Agent shall (i) promptly forward to each Bank
a copy of any notice or document received by the Administrative
Agent from the Borrower pursuant to this Agreement; (ii) promptly
notify each Bank of the occurrence of any Event of Default or
Default of which the Administrative Agent has actual knowledge;
and (iii) consult with and secure the written consent of the
Majority Banks with respect to the enforcement of this Agreement,
the Notes and the Collateral Documents.
8.4 Certain Rights of Chase and the Administrative
Agent.
(a) If Chase or the Administrative Agent shall
request instructions from the Majority Banks with respect to any
act or action (including failure to act) in connection with this
Agreement, the Collateral Documents or any other document related
thereto, Chase and the Administrative Agent shall be entitled to
take such action (unless specifically prohibited by the terms of
this Agreement) without such instructions from the Majority Banks
or to refrain from such act or taking such action unless and
until it shall have received instructions from the Majority
Banks; and neither Chase nor the Administrative Agent shall incur
liability to any Person by reason of so taking or refraining.
Chase and the Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder or under this
Agreement, the Collateral Documents, or any document related
thereto (i) if such action would, in its opinion, be contrary to
law or the terms of this Agreement, the Collateral Documents, or
any document related thereto, (ii) if it shall not receive such
advice or concurrence of the Majority Banks as it deems
appropriate in accordance with the terms hereof, or (iii) if it
shall not first be indemnified to its reasonable satisfaction
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Bank shall have any right of
action whatsoever against the Administrative Agent as a result of
the Administrative Agent acting or refraining from acting
hereunder, under the Collateral Documents, or under any document
related thereto, in accordance with the instructions of the
Majority Banks.
(b) Chase and the Administrative Agent may,
without liability to the Borrower or any Bank, (i) rely, and
shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telephone notice, telex or
teletype message, statement, order or other document or
conversation believed by Chase or the Administrative Agent to be
genuine and correct and to have been signed, sent or made by the
Person or Persons by whom it purports to have been communicated
or signed and (ii) employ in Administrative Agent's sole
discretion through its counsel or otherwise, and rely on the
advice and opinions received by them from any professional
adviser, including, without limitation, legal counsel,
independent accountants or other experts, whether or not such
professional adviser was selected by the Administrative Agent,
and the Borrower and each Bank hereby waives any claim or action
it may have against the Administrative Agent or Chase arising out
of or resulting from such employment or reliance, except in the
case of Chase's or the Administrative Agent's gross negligence or
willful misconduct.
(c) All moneys realized by the Administrative
Agent from any payment or other recovery from the Borrower, the
Company or any Subsidiary from any of the Collateral Documents or
otherwise shall be applied by the Administrative Agent against
the following in following priority: first, to costs and
expenses of Chase, the Administrative Agent or any Bank which are
reimbursable by the Borrower or otherwise pursuant to this
Agreement and the Notes second, to interest on the Notes and
fees payable to the Banks and the Administrative Agent pursuant
to this Agreement; third, to the unpaid principal balances of the
Notes and the outstanding unreimbursed face amounts of any
Letters of Credit; and fourth, to fund any Letter of Credit cash
collateral accounts, and fifth, any remaining moneys shall be
paid over to such other Person as is entitled thereto.
(d) If a Bank shall, at any time, fail to make
any payment to Administrative Agent that is required hereunder,
Administrative Agent may, but shall not be required to, retain
payments that would otherwise be made to such defaulting Bank
hereunder and apply such payments to such defaulting Bank=s
defaulted obligations hereunder, at such time, and in such order,
as Administrative Agent may elect in its sole discretion. With
respect to the payment of any funds from Administrative Agent to
a Bank or from a Bank to Administrative Agent, the party failing
to make the full payment when due pursuant to the terms hereof
shall, upon demand by the other party, pay such amount together
with interest on such amount at the Federal Fund Rate. The
failure of any Bank to fund its portion of any Advance shall not
relieve any other Bank of its obligation, if any, to fund its
portion of the Advance on the date of borrowing, but no Bank
shall be responsible for the failure of any other Bank to make
any Advance to be made by such Bank on the date of any borrowing.
Solely for purposes of voting or consenting to matters with
respect to this Agreement or any of the Collateral Documents,
collateral or any Indebtedness hereunder, and for determining a
defaulting Bank=s Percentage of payments and proceeds of
collateral, a defaulting Bank shall not be deemed to be a ABank@
and such Bank=s Percentage shall be deemed to be zero percent
(0%) until such default has been cured.
8.5 Waiver of Liability of Administrative Agent. The
Administrative Agent shall not have any liability or, as the case
may be, any duty or obligation:
(a) To the Borrower or the Company on account of
any failure of any Bank other than the Administrative Agent to
perform, or the delay of any Bank other than the Administrative
Agent in the performance of, any of its respective obligations
under this Agreement, the Collateral Documents or any of the
other documents in connection herewith;
(b) To any Bank on account of any failure or
delay in performance by either the Borrower, the Company or any
Subsidiary of any of its obligations under this Agreement, the
Collateral Documents or any of the other documents in connection
herewith unless such failure or delay is a result of the
Administrative Agent's gross negligence or willful misconduct;
(c) To any Bank for (i) the accuracy of any
written or oral statements furnished or made by the Borrower, the
Company or by any Person (including the Administrative Agent) on
behalf of the Borrower or the Company in connection with the
Credit, (ii) the accuracy of any representation, warranty or
statement made by the Borrower in or pursuant to this Agreement,
the Collateral Documents or any of the other documents in
connection herewith, or (iii) the legality, validity,
effectiveness, enforceability or sufficiency of this Agreement,
the Collateral Documents, any other document in connection
herewith, or any other document referred to herein;
(d) To any Bank to provide either initially or on
a continuing basis (except as expressly required by Section 8.3
and 8.7 hereof) any information with respect to the Borrower or
its condition, or for analyzing or assessing or omitting to
analyze or assess the status, creditworthiness or prospects of
the Borrower, the Company or any of its Subsidiaries;
(e) To any Bank to investigate whether or not any
Default or Event of Default has occurred (and the Administrative
Agent may assume that, until Administrative Agent shall have
actual knowledge or shall have received notice from any Bank, the
Company or the Borrower to the contrary, no such Default or Event
of Default has occurred);
(f) To any Bank to account for any sum or profit
or any property of any kind received by Administrative Agent
arising out of any present or future banking or other
relationship with the Borrower or with any other Person except
the relationship established pursuant to this Agreement or the
Guaranties;
(g) To any Bank to disclose to any Person any
information relating to the Borrower, the Company or any other
Subsidiary received by Administrative Agent if, in Administrative
Agent's determination (such determination to be conclusive), such
disclosure would or might constitute a breach of any law or
regulation or be otherwise actionable by suit against
Administrative Agent by the Borrower or any other Person;
(h) Other than as expressly required by this
Agreement or as expressly agreed to by the Banks, to take any
action or refrain from taking any action; and
(i) To commence any legal action or proceeding
arising out of or in connection with this Agreement or the
Guaranties until Administrative Agent shall have been indemnified
by the Borrower or by the Banks according to their Percentages to
Administrative Agent's satisfaction against any and all costs,
claims and expenses (including, but not limited to, attorneys'
fees and expenses) in respect of such legal action or proceeding.
8.6 Enforcement; Payments to Administrative Agent.
(a) Administrative Agent shall have the sole
right to enforce for itself and for the Banks and Chase the
obligations of the Borrower to Administrative Agent and/or Chase
and/or the Banks under this Agreement and the Collateral
Documents.
(b) Agent shall, in accordance with Section 2.13
hereof, remit to each Bank its Percentage of all amounts actually
paid, collected, or otherwise realized, including, without
limitation, upon realization of any collateral.
(c) Prior to any remittance thereof to Banks, any
sums owed to any Bank hereunder shall be held in trust on behalf
of such Bank; provided, however, no fiduciary relationship shall
thereby be created between Administrative Agent and Bank, and
Administrative Agent=s sole duties and responsibilities to the
Banks with respect to such sums or otherwise shall be as set
forth in this Agreement.
8.7 Non-Reliance on Administrative Agent and Other
Banks. Each Bank expressly acknowledges that the Administrative
Agent has not made any representations or warranties to such Bank
and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank represents to the
Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Bank, and
based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
financial condition, creditworthiness, affairs, status and nature
of the Borrower and the Company, and made its own decision to
enter into this Agreement, and each Bank hereby releases the
Administrative Agent from any and all liability to such Bank in
connection with the Administrative Agent's investigation and
appraisal of the Borrower's or the Company's financial affairs,
financial condition, and creditworthiness. Each Bank also
represents that it will, independently and without reliance upon
the Administrative Agent or any other Bank, 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 or
the Collateral Documents and to make such investigation as it
deems necessary to inform itself as to the status and affairs,
financial or otherwise, of the Borrower and the Company. The
Administrative Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower and
the Company of this Agreement, the Collateral Document or any
other document referred to or provided for herein or to inspect
the properties or books of the Borrower, the Company or any of
its other Subsidiaries. Except for notices, reports, and other
documents and information expressly required to be furnished to
each of the Banks by the Administrative Agent under this
Agreement or the Collateral Documents, the Administrative Agent
shall have no duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial
condition or business of the Borrower, the Company or any of its
other Subsidiaries which may come into the possession of the
Administrative Agent.
8.8 Indemnification. Each Bank agrees to indemnify
Chase, in its capacity as issuer of Letters of Credit as the
provider of the Swingloans and as the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrower or
the Company), as well as its directors, officers, employees or
agents, ratably according to its respective Percentage from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including,
without limitation, those expenses specified in Article IX hereof
which may at any time (including, without limitation, at any time
following the payment of the Revolving Note) be imposed on,
incurred by or asserted against Chase or the Administrative
Agent, its directors, officers, employees or agents, in any way
relating to or arising out of this Agreement or the Collateral
Documents or any action taken or omitted by the Administrative
Agent, its directors, officers, employees or agents, under or in
connection with any of the foregoing; provided, however, that no
Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent
that they result from the Administrative Agent's or Chase's gross
negligence or willful misconduct. The agreements in this
Section 8.8 shall survive the payment of the Notes, the
expiration or other termination of the Letters of Credit and the
termination of this Agreement and the Collateral Documents.
8.9 Administrative Agent in Its Individual Capacity.
The Administrative Agent in its individual capacity and its
affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower, the Company and
any of its other Subsidiaries as though the Administrative Agent
were not the Administrative Agent hereunder.
8.10 Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to all the Banks, the Borrower, and the Company.
Upon any such resignation, Fleet National Bank shall have the
right to become the successor Administrative Agent. If, however,
within ten (10) days upon receiving notice of the Administrative
Agent's resignation, Fleet National Bank does not accept the
position as successor Administrative Agent by giving written
notice thereof to all the Banks, the Borrower, and the Company,
then the Majority Banks shall have the right to appoint a
successor Administrative Agent other than Fleet National Bank.
If no successor Administrative Agent shall have been so appointed
by the Majority Banks and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation, then the retiring Administrative
Agent may, on behalf of all the Banks, appoint a successor
Administrative Agent. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations thereafter under this Agreement.
Administrative Agent shall continue to perform its duties
hereunder until a successor Administrative Agent shall have been
appointed and accepts such appointment in writing. After any
retiring Administrative Agent's resignation, the provisions of
this Article VIII, including, without limitation, the indemnity
provisions of Section 8.8 hereof, 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.
8.11 Reclaimed Payments; Other Actions. In the event
that Administrative Agent, Chase as the Letter of Credit issuer
or Swingloan provider, or any Bank shall be sued or threatened by
suit by the Borrower, Company, any Subsidiary Guarantor or any
surety for, or pledgor of, property which secures repayment of
all or any portion of the Advances, Letters of Credit or
Swingloans or the performance of any of the Borrower=s
obligations under the Advances, or their successors or assigns
(collectively, an AObligor@), or by a receiver or trustee for any
Obligor on account of any alleged preference, fraudulent
transfer, or other voidable or void payment or conveyance
received or alleged to have been received from any Obligor as a
result of any transaction with respect to the Advances, the
Letters of Credit, the Swingloans or the Collateral Documents,
any monies or other properties required to be paid or transferred
in connection with such suit shall be paid or transferred by
Banks in proportion to the amounts received by each with respect
to such alleged preference, fraudulent conveyance, or voidable or
void payment or conveyance and each shall bear any expenses,
costs and attorneys= fees paid or incurred in connection
therewith in the same proportion. In the event any suit, claim,
action or demand of any other kind shall be asserted against
Administrative Agent, Chase, as the Letter of Credit issuer or
Swingloan provider, or any Bank in connection with or with
respect to the Advance, the Letters of Credit, Swingloans or the
Collateral Documents, then, in such event, Administrative Agent,
Chase and the Banks shall seek the advice of and consult with
another from time to time concerning such suit, claim, action or
demand, and any monies paid in satisfaction or compromise
thereof, and any expenses, costs and attorneys= fees paid or
incurred in connection therewith, shall be shared by the Banks in
proportion to the Banks= Percentage. The obligations of the
Banks under this Section shall survive the termination of this
Agreement, and shall continue in full force and effect whether or
not there shall be any amounts remaining outstanding with respect
to the Advances or the Letters of Credit or Swingloans and
whether or not Bank=s respective Percentage in the Advances, the
Letters of Credit or Swingloan is in an amount less than the
amount of any obligation arising out of the provisions of this
Section.
8.12 Benefit of Article VIII. The provisions of this
Article VIII are intended solely for the benefit of Chase, the
Administrative Agent and all the Banks and may be modified by
mutual agreement of Chase, the Administrative Agent and all of
the Banks. The Borrower, the Company and its other Subsidiaries
shall not be entitled to rely on any such provisions or assert
any such provisions in a claim, or as a defense, against the
Administrative Agent or any Bank.
ARTICLE IX. Indemnification - Costs and Expenses
9.1 Indemnification. The Borrower and the Company
agree to indemnify, defend, and hold harmless Chase, the
Administrative Agent and each of the Banks from and against any
and all liabilities, claims, damages, penalties, expenditures,
losses, or charges, including, but not limited to, all costs of
investigation, monitoring, legal representation, remedial
response, removal, restoration or permit acquisition, which may
now or in the future be undertaken, suffered, paid, awarded,
assessed, or otherwise incurred by Chase, the Administrative
Agent, any of the Banks or any other Person as a result of the
presence of, Release of or threatened Release of Hazardous
Substances on, in, under or near the property owned or operated
by the Company or any Subsidiary. The liability of the Borrower
and the Company under the covenants of this Section and Article
II are not limited by any exculpatory provisions in this
Agreement or any other documents securing the Credit and shall
survive repayment of the Notes, expiration or other termination
of the Letters of Credit or any transfer or termination of this
Agreement regardless of the means of such transfer or
termination.
9.2 Expenses. The Borrower shall reimburse the
Administrative Agent and each of the Banks promptly for all of
their respective reasonable counsel fees incurred in connection
with this Agreement and with any indebtedness subject hereto and
for any taxes, filing fees, recording fees and appraisal fees
which the Administrative Agent may be required to pay in
connection with the execution and delivery of this Agreement, the
Notes and the Collateral Documents. The Borrower shall further
reimburse the Administrative Agent and each of the Banks promptly
for any reasonable expenses, including counsel fees and
out-of-pocket expenses, incident to the monitoring, examination
and administration of the collateral subject to the Security
Agreements during the term of this Agreement and to the
enforcement of any provision of this Agreement, the Revolving
Note, the Collateral Documents or any other document executed in
connection with this Agreement. Without limiting the Borrower's
obligation to reimburse the Administrative Agent and each of the
Banks pursuant to this Section 9.2, the Borrower hereby
irrevocably authorizes the Banks to make Advances to the Borrower
and to use the proceeds thereof to pay any amount owed by the
Borrower under this Section 9.2 upon the failure of the Borrower
to make such payment, and the Administrative Agent agrees to
notify the Borrower of the making of such Advances. Any such
Advances shall be made in the minimum amount necessary.
ARTICLE X. Miscellaneous
10.1 Amendments and Waivers. No modification,
rescission, waiver, release or amendment of any provision of this
Agreement or any Security Documents shall be made except by a
written agreement subscribed by duly authorized officers of the
Borrower, the Company and the Administrative Agent with the
consent of the Majority Banks; provided, however, unless
consented to by each Bank, no such amendment, modification or
waiver shall be made:
(a) which would modify any requirement that any
particular action to be taken hereunder by or on behalf of the
Banks shall be taken by all Banks or by the Majority Banks so as
to reduce the number of Banks required to take such action;
(b) which would amend this Section or which would
increase any Bank's Commitment or Percentage, reduce the Facility
Fee, extend the Termination Date or release any of the
Guaranties;
(c) which would extend the due date for, or
reduce the amount of, any payment or prepayment of principal of
or interest on any Revolving Note (or reduce the principal amount
of or rate of interest on any Revolving Note);
(d) which would release any material portion of
the Collateral described
in the Security Agreements; or
(e) which would increase the total Commitment
above the Maximum
Revolving Credit Commitment.
In addition, no modification shall be made which would
adversely affect the interests, rights or obligations of the
Administrative Agent unless consented to by the Administrative
Agent.
10.2 Delays and Omissions. No course of dealing and
no delay or omission by the Administrative Agent or any of the
Banks in exercising any right or remedy hereunder or with respect
to any indebtedness of the Borrower to any of the Banks shall
operate as a waiver thereof or of any other right or remedy, and
no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right or
remedy. All rights and remedies of the Administrative Agent and
the Banks hereunder are cumulative.
10.3 Participations and Assignments. The Borrower
shall not assign or otherwise transfer any of the rights of the
Borrower pursuant to this Agreement without the prior written
consent of all the Banks, and any such assignment or other
transfer without such prior written consent shall be void. No
consent by any Bank to any such assignment or other transfer
shall release the Borrower from any indebtedness, liability or
obligation of the Borrower pursuant to this Agreement. No Bank
shall assign or otherwise transfer, or grant any participation
in, any indebtedness, liability or obligation of the Borrower to
such Bank pursuant to this Agreement or any of the rights and
remedies of such Bank pursuant to this Agreement without the
prior written consent of the Borrower and the Administrative
Agent which consent shall not be unreasonably withheld, except
(i) any Bank may assign or otherwise transfer, or grant
participations in, any indebtedness, liability or obligation of
the Borrower to any other Bank or to any Affiliate of such Bank,
and (ii) any Bank may execute an assignment in favor of a
Replacement Bank as contemplated by Section 2.15 hereof.
Notwithstanding any of the foregoing, any Bank without the
consent of the Borrower or Administrative Agent, (i) may grant a
participation in any indebtedness, liability or obligation of the
Borrower to such Bank, including without limitation, any
Advances, Letters of Credit and Swingloans provided (a) such
participation is in a minimum amount of $5,000,000 and (b) such
Bank shall remain solely responsible for its performance under
this Agreement, such Bank shall remain the holder of the Note
made payable to it for all purposes under this Agreement and the
Borrower and Administrative Agent shall continue to deal solely
and directly with such Bank in connection with such Bank=s rights
and obligations under this Agreement and the Collateral
Documents; and (ii) may assign all or a portion of its rights and
obligations under this Agreement, including without limitation,
rights and obligations with respect to any Advances, Letters of
Credit and Swingloans provided (a) an Event of Default has
occurred and is continuing, (b) such assignment is in a minimum
amount of $5,000,000, and (c) if such Bank does not fully assign
all of its rights and obligations, such Bank shall retain at
least $10,000,000 of obligations under the Agreement.
10.4 Successors and Assigns. The Borrower, Company,
Subsidiary, Administrative Agent, Chase and Bank as such terms
are used herein shall include the legal representatives,
successors and assigns of those parties.
10.5 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing, unless otherwise expressly provided herein, and shall be
deemed to have been given or made when delivered by hand or by
Facsimile (with a copy by regular mail), three (3) Business Days
after being delivered to a courier for overnight delivery or five
(5) Business Days after being deposited in the first class United
States mail, addressed as follows, or to such other address as
may be hereafter notified by the respective parties hereto:
To the Borrower: Gibraltar Steel Corporation
of New York
3556 Lakeshore Road
Buffalo, New York 14219
Attn: John E. Flint
Facsimile No. (716) 826-1589
Telephone No. (716) 826-6500
To the Company: Gibraltar Steel Corporation
3556 Lakeshore Road
Buffalo, New York 14219
Attn: John E. Flint
Facsimile No. (716) 826-1589
Telephone No. (716) 826-6500
To Chase or the
Administrative Agent: The Chase Manhattan Bank
2300 Main Place Tower
Buffalo, New York 14202
Attn: Robert J. McArdle
Facsimile No.(716) 843-4939
Telephone No.(716) 858-1418
To any Bank: The address listed on Schedule 1 of
this Agreement.
10.6 Governing Law. This Agreement, the transactions
described herein and the obligations of the parties hereto shall
be construed under, and governed by, the laws of the State of New
York, without regard to its conflict of laws rules which would
make the laws of another jurisdiction applicable.
10.7 Counterparts. This Agreement may be executed in
any number of counterparts and by the Administrative Agent, the
Banks, the Borrower and the Company on separate counterparts,
each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one
and the same Agreement.
10.8 Titles. Titles to the sections of this Agreement
are solely for the convenience of the parties, and are not an aid
in the interpretation of this Agreement or any part thereof.
10.9 Inconsistent Provisions. The terms of this
Agreement and any related agreements, instruments or other
documents shall be cumulative except to the extent that they are
specifically inconsistent with each other, in which case the
terms of this Agreement shall prevail.
10.10 JURY TRIAL WAIVER. EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO TRIAL BY JURY WHICH IT MAY HAVE IN ANY ACTION
OR PROCEEDING, IN LAW OR EQUITY, IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS RELATED HERETO.
10.11 CONSENT TO JURISDICTION. THE BORROWER, THE
COMPANY, THE ADMINISTRATIVE AGENT AND THE BANKS AGREE THAT ANY
ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT
MAY BE COMMENCED IN THE SUPREME COURT OF NEW YORK IN ERIE COUNTY,
OR IN THE DISTRICT COURT OF THE UNITED STATES IN THE WESTERN
DISTRICT OF NEW YORK, AND THE BORROWER, THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE BANKS WAIVE PERSONAL SERVICE OF
PROCESS AND AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN
ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED
AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED OR
CERTIFIED MAIL TO THE BORROWER OR THE ADMINISTRATIVE AGENT, AS
APPROPRIATE, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF
NEW YORK OR THE UNITED STATES.
[This Space Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized officers, all on
the 29th day September, 2000.
BORROWER:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: /s/ John E. Flint
John E. Flint
Vice President
COMPANY:
GIBRALTAR STEEL CORPORATION
By: /s/ John E. Flint
John E. Flint
Vice President
ADMINISTRATIVE AGENT:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Robert J. McArdle
Robert J. McArdle
Vice President
BANKS:
THE CHASE MANHATTAN BANK
By: /s/ Robert J. McArdle
Name: Robert J. McArdle
Title: Vice President
FLEET NATIONAL BANK
By: /s/ John C. Wright
Name: John C. Wright
Title: Vice President
MELLON BANK, N.A.
By: /s/ Edward J. Kloecker
Name: Edward J. Kloecker
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Mark F. Wachowiak
Name: Mark F. Wachowiak
Title: Assistant Vice President
HSBC BANK USA
By: /s/ William H. Graser
Name: William H. Graser
Title: Vice President
PNC BANK, N.A.
By: /s/ David B. Gookin
Name: David B. Gookin
Title: Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Wayne N. Keller
Name: Wayne N. Keller
Title: Vice President
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ William A. Feldmann
Name: William A. Feldmann
Title: Vice President
FIFTH THIRD BANK, NORTHEASTERN OHIO
By: /s/ James P. Byrnes
Name: James P. Byrnes
Title: Vice President
FIRSTAR BANK, N.A.
By: /s/ David J. Dannemiller
Name: David J. Dannemiller
Title: Vice President
SUNTRUST BANK
By: /s/ W. David Wisdom
Name: W. David Wisdom
Title: Vice President
COMERICA BANK
By: /s/ Joel S. Gordon
Name: Joel S. Gordon
Title: Account Officer
EXHIBIT A
COMPLIANCE CERTIFICATE - FINANCIAL COVENANTS
GIBRALTAR STEEL CORPORATION OF NEW YORK ("Borrower")
and GIBRALTAR STEEL CORPORATION ("Company") hereby certify to THE
CHASE MANHATTAN BANK, as administrative agent ("Administrative
Agent") for the Banks (as such term is defined in the Third
Amended and Restated Credit Agreement among the Borrower, the
Company, the Administrative Agent and the Banks dated as of
September 29, 2000 ("Agreement")) and to each of the Banks that:
1. Capitalized terms not defined herein shall have
the meanings set forth in the Agreement.
2. The applicable date for all calculations made in
this Compliance Certificate is __________________. ("Measurement
Date").
3. The computations, ratios and calculations set
forth below, all of which are calculated as of the Measurement
Date, are true and correct:
(a) Quarterly Test:
(i) Consolidated Net Worth
as of end of any
fiscal quarter $
(ii) Cumulative Net Income
(from June 30, 1997) times
50% plus $120,000,000 = $
(iii) (i) minus (ii) = $
(b) (i) Funded Debt $
(ii) Earnings before
Interest and Taxes plus
depreciation and
amortization = $
(iii) Ratio of (i) to (ii) = to 1
(c) (i) Consolidated Earnings
Before Taxes and Interest
plus depreciation
for the four fiscal
quarters ended ______ = $
(ii) Interest payable
on Consolidated
Total Liabilities
for same period = $
(iii) Ratio of (i) to (ii) = to 1
(d) (i) Current Assets = $
(ii) Current Liabilities = $
(iii) Ratio of (i) to (ii) =
to 1
(e) Leverage Test I
(i) Indebtedness of the
Company on a
Consolidated basis = $
(ii) Consolidated Earnings
Before Taxes, Interest,
Depreciation and
Amortization = $
(iii) Capital Expenditures
not funded with proceeds
of the Revolving Credit
as listed on a Schedule
attached hereto
(excluding Capital
Expenditures made in
connection with
permitted acquisitions)= $
(iv) (ii) less (iii) = $
(v) Ratio of (i) to (iv) = to
WITNESS the signature of a duly authorized officer of
the Borrower and the Company on .
Borrower:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By: ___________________________
Name: _________________________
Title: ________________________
Company:
GIBRALTAR STEEL CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
EXHIBIT B
COMPLIANCE CERTIFICATE - GENERAL
GIBRALTAR STEEL CORPORATION OF NEW YORK ("Borrower") and
GIBRALTAR STEEL CORPORATION ("Company") hereby certify to THE
CHASE MANHATTAN BANK as agent ("Administrative Agent") for the
Banks (as such term is defined in the Third Amended and Restated
Credit Agreement among the Borrower, the Company, the
Administrative Agent and the Banks dated as of September 29, 2000
("Agreement")), and to each of the Banks that:
1. Capitalized terms not defined herein shall have
the meanings set forth in the Agreement.
2. The Borrower and the Company have complied with
all the terms, covenants and conditions to be performed or
observed by them contained in the Agreement and the Guaranties to
which they are a party.
3. There exists no Default nor Event of Default on
the date hereof or, if applicable, after giving effect to the
Letter of Credit issued or the Advances made on the date hereof.
4. The representations and warranties contained in
the Agreement or in any certificate, document or financial or
other statement furnished at any time thereunder are true,
correct and complete in all material respects with the same
effect as though such representations and warranties had been
made on the date hereof, except to the extent that any such
representation and warranty relates solely to an earlier date (in
which case such representation and warranty shall be true,
correct and complete on and as of such earlier date).
WITNESS the signature of a duly authorized officer of the
Borrower and the Company on .
BORROWER:
GIBRALTAR STEEL CORPORATION OF NEW YORK
By:
Name:
Title:
COMPANY:
GIBRALTAR STEEL CORPORATION
By:
Name:
Title:
EXHIBIT C
REPLACEMENT
REVOLVING NOTE
$ Buffalo, New York
_________________
FOR VALUE RECEIVED, the undersigned, GIBRALTAR STEEL
CORPORATION OF NEW YORK ("Borrower"), hereby unconditionally
promises to pay on the Termination Date (as defined in the Credit
Agreement hereinafter referred to) to the order of
, the principal sum equal to the lesser of (a)
or (b) the aggregate unpaid principal amount of all Advances [and
Swingloans made by The Chase Manhattan Bank ("Bank")] to the
Borrower pursuant to the Third Amended and Restated Credit
Agreement, dated as of September __, 2000, among the Borrower,
Gibraltar Steel Corporation, The Chase Manhattan Bank as
Administrative Agent ("Administrative Agent") and the various
financial institutions named as Banks therein (including the
Bank), as the same may from time to time be amended, supplemented
or otherwise modified ("Credit Agreement"), together with
interest at the rate and on the terms as specified herein. All
capitalized terms used in this Revolving Note and not otherwise
defined shall have the meanings set forth in the Credit
Agreement.
This Revolving Note shall bear interest at the rates
and on the dates determined in accordance with Section 2.4 of the
Credit Agreement.
Payments of both principal and interest are to be made
in lawful money of the United States of America in immediately
available funds at Administrative Agent's Office.
Each entry on the Schedule attached hereto (and any
continuation thereof) shall be prima facie evidence of the facts
so set forth. No failure by the Bank to make, and no error by
the Bank in making, any inscription on the Schedule shall affect
the Borrower's obligation to repay the full principal amount of
the Advances and the Swingloans made by the Bank to the Borrower
or the Borrower's obligation to pay interest thereon at the
agreed upon rate. The Bank is authorized to inscribe the date of
the making of each Advance or Swingloan or conversion of any
portion of this Note to a LIBOR Loan, the date of the
continuation of any Base Rate Loan, the amount of each Advance or
Swingloan, its character as a Base Rate Loan or a LIBOR Loan, the
dates on which each LIBOR Period shall begin and end, each
payment of principal and the aggregate unpaid balance of this
Note, on the schedule annexed hereto and constituting a part
hereof, or on a continuation thereof which shall be attached
hereto and made a part hereof.
No failure by the Bank to exercise, and no delay in
exercising, any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the
Administrative Agent or the Bank of any right or power hereunder
preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the Bank,
or of the Administrative Agent for the benefit of the Bank, as
herein specified are cumulative and not exclusive of any other
rights or remedies, including those set forth in the Credit
Agreement and the Guaranties.
Upon the happening of one or more Events of Default as
described in Section 7.1 of the Credit Agreement, this Revolving
Note may be accelerated in accordance with Section 7.2 of the
Credit Agreement.
The Borrower hereby waives diligence, presentment,
protest and demand, and also notice of protest, demand, dishonor
and nonpayment of this Revolving Note.
This Revolving Note is one of the Revolving Note
referred to in the Credit Agreement, to which reference is hereby
made with respect to prepayment and rights of acceleration of the
principal hereof on the occurrence of certain events.
This Revolving Note shall be construed under, and
governed by, the laws of the State of New York, without regard to
its conflict of laws rules which would make the laws of another
jurisdiction applicable.
GIBRALTAR STEEL CORPORATION OF NEW YORK
[Seal] By:
Name:
Title:
SCHEDULE
ADVANCES
BASIS OF
INTEREST
RATE
(BASE AMOUNT OF
DATE AMOUNT RATE OR LIBOR PRINCIPAL AGGREGATE NOTATION
ADVANCE OF LIBOR PERIOD PAID OR UNPAID MADE BY
MADE ADVANCE RATE) DATES PREPAID PRINCIPAL AND DATE
SCHEDULE FOR CHASE NOTE ONLY
SWINGLOANS
DATE ADVANCE AMOUNT NOTATION
MADE OF INTEREST MADE BY
SWINGLOAN RATE AND DATE
SCHEDULE 1
BANKS
Name; Notice Address and
Percentage Commitment LIBOR Lending Office
16.12904 % $50,000,000.00 THE CHASE MANHATTAN BANK
2300 Main Place Tower
Buffalo, New York 14202
Telephone No. (716) 858-1418
Facsimile No. (716) 843-4939
14.51613 % $45,000,000.00 FLEET NATIONAL BANK
10 Fountain Plaza, 9th Fl.
Buffalo, New York 14202
Telephone No. (716) 847-7287
Facsimile No. (716) 847-4491
11.29032 % $35,000,000.00 MELLON BANK, N.A.
Two Mellon Bank Center
Pittsburgh, Pennsylvania 15259
Telephone No. (412) 234-1098
Facsimile No. (412) 234-9010
and
1128 State Street
Erie, Pennsylvania 16501
Telephone No. (814) 453-7273
Facsimile No. (814) 453-7275
11.29032% $35,000,000 KEYBANK NATIONAL ASSOCIATION
50 Fountain Plaza, 5th Floor
Buffalo, New York 14202
Telephone No. (716) 847-2330
Facsimile No. (716) 847-7897
11.29032% $35,000,000 HSBC BANK USA
One HSBC Center, Lobby Level
Buffalo, New York 14203
Telephone No. (716) 841-2556
Facsimile No. (716) 855-0384
6.45161% $20,000,000 PNC BANK, N.A.
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Telephone No. (412) 762-4815
Facsimile No. (412) 705-3231
6.45161% $20,000,000 MANUFACTURERS AND TRADERS
TRUST COMPANY
One Fountain Plaza, 12th Floor
Buffalo, NY 14202
Telephone No. (716) 848-7003
Facsimile No. (716) 848-7318
6.45161% $20,000,000 NATIONAL CITY BANK OF
PENNSYLVANIA
801 State Street
Erie, PA 16501
Telephone: (814) 871-1249
Facsimile: (814) 455-5495
4.83871% $15,000,000 FIFTH THIRD BANK, NORTHEASTERN OHIO
1404 East Ninth Street
Cleveland, OH 44114
Telephone: (216) 274-5575
Facsimile: (216) 274-5621
4.83871% $15,000,000 FIRSTAR BANK, N.A.
1350 Euclid Ave., Suite 800
Cleveland, OH 44115
Telephone: (216) 623-9233
Facsimile: (216) 623-9208
4.83871% $15,000,000 SUNTRUST BANK
711 Fifth Avenue, 16th Fl.
New York, NY 10022
Telephone: (212) 583-2604
Facsimile: (212) 371-9386
3.22581% $$10,000,000 COMERICA BANK
One Detroit Center
500 Woodward Ave, MC 3289
Detroit, MI 48226
Telephone: (313) 222-3647
Facsimile: (313) 222-3330
SCHEDULE 3.1.d
Subsidiaries Required to Execute and Deliver Guaranties
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Carolina Commercial Heat Treating Nevada
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Pickling, Inc. Delaware
Southeastern Metals Manufacturing Company, Inc. Florida
Solar Group, Inc. Delaware
Appleton Supply Company Delaware
United Steel Products Company Minnesota
Harbor Metal Treating Co. Michigan
Harbor Metal Treating of Indiana, Inc. Michigan
K&W Metal Fabricators, Inc. Colorado
Hi-Temp Heat Treating, Inc. Delaware
Brazing Concepts Company Michigan
Milcor, Inc. Delaware
SCHEDULE 4.11
Subsidiaries
Gibraltar Steel Corporation of New York New York
Wm. R. Hubbell Steel Corporation Illinois
Carolina Commercial Heat Treating, Inc. Nevada
Southeastern Metals Manufacturing Company, Inc. Florida
Gibraltar Strip Steel, Inc. Delaware
Integrated Technologies International, Ltd. Delaware
Cleveland Pickling, Inc. Delaware
Solar Group, Inc. Delaware
Appleton Supply Company Delaware
United Steel Products Company Minnesota
Harbor Metal Treating Co. Michigan
Harbor Metal Treating of Indiana, Inc. Michigan
K&W Metal Fabricators, Inc. Colorado
Hi-Temp Heat Treating Inc. Delaware
Brazing Concepts Company Michigan
Gibraltar Steel Corporation of Tennessee Tennessee
GIT Limited New York
GSC Flight Service Corp. New York
Gibraltar Construction Products, Inc. Delaware
Milcor, Inc. Delaware
SCHEDULE 4.15/6.2
Permitted Indebtedness
1. Indebtedness of the Company, the Borrower or any Subsidiary
owing to third Persons from time to time in an aggregate
principal amount not to exceed $3,000,000.00 in the
aggregate at any one time.
2. The Borrower may enter into, from time to time, various
interest rate swap, cap and other arrangements with one or
more of the Banks not to exceed one-half of the outstanding
principal amount of Advances at any one time.
3. The Borrower enters into various foreign exchange contracts
having a maximum daily delivery risk of $1,000,000.00.
4. Indebtedness under Section 6.3 of this Agreement.
SCHEDULE 4.18
Environmental Matters
None
SCHEDULE 6.4
Liens
(a) Security Interests which were granted prior to the
date hereof and which were disclosed in the financial statements
delivered to the Bank;
(b) liens for taxes, assessments, or other
governmental charges or levies to the extent that payment thereof
shall not at the time be required to be made in accordance with
the provisions of Section 5.5;
(c) liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of
business for sums not overdue or being contested in good faith by
appropriate proceedings and for which appropriate reserves with
respect thereto have been established and maintained by the
Company on a consolidated basis in accordance with GAAP;
(d) liens incurred in the ordinary course of business
in connection with workers' compensation, unemployment insurance,
or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, leases, and
contracts (other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on surety or
appeal bonds;
(e) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects
which, in the aggregate, are not substantial in amount, and which
do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct
of the business of the Company or its Subsidiaries; and
(f) judgment liens securing amounts not in excess of
$250,000.00 in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or
with respect to which the appropriate insurance carrier has
agreed in writing that there is full coverage by insurance.
<PAGE>
