[EXECUTION COPY]
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 30, 1997
among
THE GENLYTE GROUP INCORPORATED
and
THE BANKS NAMED HEREIN
and
THE BANK OF NEW YORK
and
SUN TRUST BANK, ATLANTA, AS CO-AGENTS
AND
BANK OF AMERICA ILLINOIS,
as a Bank and Letter of Credit Issuer,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
As Agent
SECTION
TABLE OF CONTENTS
PAGE
1. COMMITMENT
A. Amount....................................................... 1
B. Reborrowings................................................. 2
▇. ▇▇▇▇▇' Obligations Several and Not Joint..................... 2
D. Reduction or Termination of Commitments...................... 2
2. TERMS OF CREDIT
A. The Notes.................................................... 4
B. Interest Rate................................................ 4
C. Prepayment................................................... 8
D. Fees ........................................................ 8
E. Letters of Credit............................................ 10
1. Requests............................................ 10
2. Other Banks' Participation.......................... 11
3. Disbursements....................................... 11
4. Reimbursement....................................... 11
5. Deemed Disbursements................................ 12
6. Nature of Reimbursement Obligations................. 12
F. Pro Rata Treatment........................................... 13
G. Reserve Requirements; Change in Circumstances................ 14
H. Change in Legality........................................... 16
I. Reimbursement of Banks....................................... 16
J. Indemnity.................................................... 17
K. Payments..................................................... 17
L. Use of Proceeds.............................................. 17
M. Taxes........................................................ 18
N. Security..................................................... 18
3. REPRESENTATIONS AND WARRANTIES
A. Organization and Good Standing............................... 19
B. Corporate Authority.......................................... 19
C. Binding Agreement............................................ 19
D. No Conflicting Agreements.................................... 19
E. Litigation................................................... 19
F. Tax Returns and Payments..................................... 20
G. Financial Statements......................................... 20
H. Compliance with Government Regulations....................... 20
I. Employee Benefit Plans....................................... 21
J. Ownership of Property; Liens................................. 21
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SECTION PAGE
4. CONDITIONS PRECEDENT
A. Effectiveness................................................ 22
1. Execution in Counterparts........................... 22
2. Resolutions, etc.................................... 22
3. Compliance Certificate.............................. 22
4. Opinions of Counsel................................. 23
5. Confirmation........................................ 23
6. Security Agreement.................................. 23
7. Payment of Fees..................................... 24
8. Payment under Existing Credit Agreement............. 24
B. All Credit Extensions........................................ 24
1. Notice.............................................. 24
2. Compliance Certificate.............................. 24
C. Legal Matters Satisfactory to Counsel........................ 24
5. AFFIRMATIVE COVENANTS
A. Payment of Principal and Interest on the Notes,
Letter of Credit Outstandings and Fees Hereunder.......... 25
B. Maintenance of Office........................................ 25
C. Books and Accounts........................................... 25
D. Financial Statements......................................... 25
E. Taxes........................................................ 26
F. Insurance.................................................... 27
G. Corporate Existence.......................................... 27
H. Notice of Default............................................ 27
I. Notice of Material Adverse Change............................ 27
J. ERISA Reports................................................ 27
K. Regulation U................................................. 28
L. Future Subsidiaries.......................................... 28
6. NEGATIVE COVENANTS
A. Borrowings................................................... 29
B. Mortgages, etc............................................... 31
C. Consolidation, Merger or Sale of Assets...................... 33
D. Loans, Advances and Contingent Liabilities................... 33
E. Investments.................................................. 34
F. Payments on Stock; Restricted Investment..................... 36
G. Sale and Leaseback........................................... 37
H. Obligations as Lessee........................................ 37
I. Negative Pledges, Restrictive Agreements, etc................ 37
J. Financial Covenants.......................................... 38
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SECTION PAGE
7. EVENTS OF DEFAULT
A. Nature of Events............................................. 39
1. Default in Payment of Obligations................... 39
2. Incorrect Representation............................ 39
3. Default Under Certain Covenants..................... 39
4. Default Under Other Provisions...................... 39
5. Cross Default....................................... 39
6. Bankruptcy, etc..................................... 40
7. Unpaid Judgment..................................... 40
8. Material Reportable Events.......................... 40
9. Control of the Borrower............................. 41
10. Impairment of Security, etc........................ 41
▇. ▇▇▇▇▇' Rights of Set-off..................................... 41
8. THE AGENT AND COLLATERAL AGENT
A. Authorization by Banks....................................... 43
B. Duties of Agent and Collateral Agent......................... 43
C. Limitation of Liability...................................... 44
D. Expenses..................................................... 45
E. Resignation of Agent......................................... 45
F. Acceptance of Appointment.................................... 45
G. Co-Agents.................................................... 46
9. DEFINITIONS
10. AMENDMENTS AND WAIVERS
11. MISCELLANEOUS
A. Costs and Expenses........................................... 61
B. Indemnity.................................................... 61
C. Notices...................................................... 62
D. Survival of Representations and Warranties................... 62
E. Construction................................................. 62
F. Jurisdiction................................................. 62
G. Headings..................................................... 63
H. Successors and Assigns....................................... 63
I. Counterparts................................................. 63
J. Waiver of Jury Trial......................................... 63
K. Cross-References............................................. 64
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EXHIBITS
Exhibit A-2 List of Banks
Exhibit B Form of Note
Exhibit C Form of Leverage Ratio Certificate
Exhibit D Form of Compliance Certificate
Exhibit E Form of Subordination Provisions
Exhibit F Addresses of the Agent and the Banks
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 30, 1997
among THE GENLYTE GROUP INCORPORATED, a Delaware corporation (the "BORROWER"),
each of the banks named in EXHIBIT A-2 (individually, a "BANK" and collectively,
the "BANKS"), BANK OF AMERICA ILLINOIS (formerly known as "CONTINENTAL BANK,
N.A."), as a Bank and as Issuer (the "ISSUER"), THE BANK OF NEW YORK and SUN
TRUST BANK, ATLANTA (collectively, the "CO-AGENTS") and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent for the Banks (the "AGENT") (this
"AGREEMENT").
R E C I T A L S:
WHEREAS, the Borrower, the Existing Banks and Bank of America Illinois
entered into an Amended and Restated Credit Agreement dated November 15, 1995
(the "EXISTING CREDIT AGREEMENT"); and
WHEREAS, the Borrower, the Banks, the Issuer and the Agent desire to
amend and restate the provisions of the Existing Credit Agreement as herein
provided for the purposes of (i) modifying certain provisions; and (ii)
releasing certain Existing Banks party to the Existing Credit Agreement;
NOW THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree that , as of the Effective Date, the Existing Credit
1. COMMITMENT.
a. AMOUNT. Subject to the terms and conditions hereof,
i. each Bank agrees to make Loans (individually a "LOAN"
and collectively the "LOANS") to the Borrower, at any
time and from time to time on or after the date
hereof and prior to the Final Maturity Date or until
such earlier time as such Bank's Commitment set forth
on EXHIBIT A-2, as such Commitment may be permanently
reduced or terminated pursuant to SUBPARAGRAPH 1(d)
hereof, shall have terminated in accordance with the
terms hereof, PROVIDED that at no time shall the
aggregate outstanding principal amount of any Bank's
Loans, together with an amount equal to such Bank's
Percentage multiplied by the then
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aggregate amount of Letter of Credit Outstandings,
exceed the Commitment of such Bank; and
ii. the Issuer agrees to issue, for the account of the
Borrower and in Stated Amounts requested by the
Borrower, one or more Letters of Credit, at any time
and from time to time on or after the date hereof and
prior to the Final Maturity Date or such earlier time
as the Commitment shall have been permanently reduced
to zero or terminated; PROVIDED that at no time shall
the aggregate amount of Letter of Credit Outstandings
exceed $25,000,000.
b. REBORROWINGS. Subject to the terms and conditions
hereof, the Borrower may borrow, prepay, repay and
reborrow Loans from each Bank at any time and from
time to time on or after the date hereof and prior to
the Final Maturity Date, PROVIDED that the aggregate
outstanding principal amount of such Bank's Loans,
together with an amount equal to such Bank's
Percentage multiplied by the then aggregate amount of
Letter of Credit Outstandings, does not exceed the
amount of such Bank's Commitment, and PROVIDED,
FURTHER, that any such prepayment or repayment shall
be pro-rata among all the Banks.
▇. ▇▇▇▇▇' OBLIGATIONS SEVERAL AND NOT JOINT.
i. The respective obligations of the Banks hereunder are
several and not joint. The failure of any Bank to
make any Credit Extension hereunder shall not relieve
any other Bank from its obligation to make a Credit
Extension hereunder and no Bank shall be obligated to
make up the amount of any Credit Extension that a
Bank has failed to make available hereunder.
ii. Promptly on the date specified in the notice of a
Loan required under SUBDIVISION 4(b)(1), each Bank
shall make available to the Agent Federal or other
immediately available funds in the amount of such
Bank's Loan.
d. REDUCTION OR TERMINATION OF COMMITMENTS.
i. The Borrower may at any time permanently reduce in
part in the aggregate principal amount of $5,000,000
and integral multiples of $1,000,000 in excess
thereof, or terminate in whole the Commitment of each
Bank (on a pro-rata basis) and the Borrower's
obligation to pay a commitment fee in respect
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thereof upon three (3) Business Days' prior written
notice of such reduction or termination to the Agent,
without penalty, PROVIDED that (a) on or before the
effective date of any such partial reduction, the
portion of the outstanding principal amount of the
Loans of each Bank which, together with an amount
equal to such Bank's Percentage multiplied by the
then aggregate amount of Letter of Credit
Outstandings, exceeds the Commitment of such Bank, as
so reduced, shall be paid as a mandatory prepayment
and (b) on or before the effective date of any such
termination in whole, the entire outstanding
principal amount of the Loans of each Bank shall be
paid as a mandatory prepayment and all the Letters of
Credit shall have been terminated in full or the
Borrower shall have paid or cash collateralized in
full the related Reimbursement Obligations.
Voluntary partial reductions of the Commitment, made pursuant
to this SUBDIVISION 1(d)(1), shall be credited to the mandatory
quarterly reductions required pursuant to SUBDIVISION 1(d)(2) below, in
the order of the next occurring quarterly reductions.
ii. Subject to any credits for any voluntary partial
reductions of the Commitment set forth in SUBDIVISION
1(d)(1) above, the aggregate Commitment of all the
Banks shall, automatically and without any further
action or notice to any Person, be reduced by
$2,500,000 on March 31, 1998, June 30, 1998,
September 30, 1998 and December 31, 1998.
iii. The aggregate Commitment of all the Banks shall be
reduced by the amount of any prepayment resulting
from a Sale and Leaseback permitted in SUBPARAGRAPH
6(g). Mandatory Commitment reductions required by
SUBDIVISIONS 1(d)(2) and (3) shall be subject to the
prepayment provisions set forth in SUBDIVISION
1(d)(1) above except that the principal amount
limitations for reductions in Commitments set forth
in 1(d)(1) above shall not apply.
iv. Notwithstanding SUBPARAGRAPH 1(b) and SUBDIVISION
1(d)(1), in the event that any Bank shall give any
notification to the Borrower pursuant to SUBDIVISION
2(g)(5), the Borrower shall have the right to
terminate immediately the unused portion of the
Commitment of such Bank by giving notice of such
termination to such Bank and to the Agent, in which
event such Bank shall have no further Commitment
under this Agreement except in the amount of Loans
made by such Bank at the time
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outstanding and its Percentage of the then
outstanding amount of Letter of Credit Outstandings,
and when all such Loans made by such Bank have been
paid or prepaid and all Letters of Credit in which it
has purchased a participation have been terminated in
full or the Borrower has paid or cash collateralized
in full the related Reimbursement Obligations, such
Bank shall have no further Commitment under this
Agreement. In the event that the Borrower terminates
the Commitment of any Bank pursuant to the provisions
of this SUBDIVISION (d)(4), the respective
Commitments of the other Banks shall be unaffected in
any manner whatsoever, PROVIDED that each remaining
Bank's Percentage shall, automatically and without
any further action, be adjusted accordingly.
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2. TERMS OF CREDIT.
a. THE NOTES.
(1) The obligation of the Borrower to repay the Loans shall be
evidenced by Notes of the Borrower, payable to the order of each Bank,
in substantially the form of EXHIBIT B, with blanks appropriately
filled, signed and dated their date of issuance. The Loans and Notes
shall be payable on the Final Maturity Date. The Loans made to the
Borrower by any Bank and all payments and prepayments on account of the
principal of such Loans shall be recorded and endorsed by such Bank on
the Schedule of Loans and Payments of Principal on the reverse side of
the Note issued to it, which recordation and endorsement shall be PRIMA
FACIE evidence of Loans by and payment to such Bank; PROVIDED that the
failure of such Bank to set forth such principal payments, prepayments
and other information on such Schedule shall not in any manner affect
the obligation of the Borrower to repay the Loans made by such Bank in
accordance with the terms of such Note. Each Bank agrees to deliver to
the Borrower from time to time a true copy of the Note (including such
Schedule) issued to such Bank upon the written request of the Borrower.
(2) The Notes shall bear interest from the date thereof until
maturity or earlier payment by the Borrower pursuant to SUBPARAGRAPHS
1(d) or 2(c) or PARAGRAPH 7, at the rate calculated as set forth in
SUBPARAGRAPH 2(b) below, except as otherwise provided in this
SUBDIVISION 2(a)(2). Except as otherwise provided in this Agreement,
such interest shall be payable on each Interest Payment Date and at the
Final Maturity Date on the unpaid principal amount of Notes from time
to time outstanding. After the stated maturity or such earlier date on
which the principal of any Note may become or may be declared due and
payable pursuant to PARAGRAPH 7, such Note shall bear interest (and
after the date of any required prepayment pursuant to SUBDIVISION
2(c)(1), the principal amount of such Note required to be prepaid shall
bear interest) at the rate per annum of 2% over the Base Rate, payable
on each Interest Payment Date or, at the option of the holder thereof,
upon demand.
b. INTEREST RATE.
i. The Notes shall bear interest at a rate which, at the
election of the Borrower, shall be either the Base
Rate or the Eurodollar Rate. The Borrower shall elect
the applicable rate of interest as follows:
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(1) Not later than 12:00 noon, New York time, on
the Business Day on which Loans at the Base
Rate are to be made, the Borrower shall give
the Agent telephonic notice specifying the
aggregate principal amount of such Loans,
and the date such Loans are to be made. At
least three (3) Business Days prior to the
making of each Loan at the Eurodollar Rate,
the Borrower shall give the Agent either (1)
written notice, or (2) telephone notice
before 12:00 noon, New York time, on the
third Business Day prior to the date
specified for the making of such Loan, in
either case, specifying the aggregate
principal amount of such Loan, the date on
which such Loan is to be made and the
applicable Interest Period, PROVIDED, that
any such notice shall be irrevocable when
given. The telephonic notices provided for
herein shall be confirmed by the Agent to
the Borrower in a writing which shall be
sent or mailed by the Agent prior to the end
of the second Business Day following the
Business Day on which such telephonic notice
was given. As to any Bank, if the Borrower
fails in a timely fashion as set forth above
to make such election or to specify the
applicable Interest Period, the Base Rate
shall apply to such Bank's Loan or
applicable portion thereof.
(2) The Base Rate or the Eurodollar Rate shall
(subject to the provisions of this
SUBDIVISION 2(b)(1)(b) and subdivision
2(B)(4) and SUBPARAGRAPH 2(g)) apply to that
portion of each Loan specified in the
notice. The Borrower may from time to time
by notice to the Agent change its election
as between the Base Rate and the Eurodollar
Rate, including the Interest Period to be
applied to any portion of the outstanding
amount of any Loan calculated at the
Eurodollar Rate, PROVIDED that (i) notice of
any such change in election to the
Eurodollar Rate or an applicable Interest
Period for the Eurodollar Rate shall be
irrevocable when given and shall be given
telephonically or in writing to the Agent
before 12:00 noon, New York time, on the
third Business Day prior to the date desired
for such change, and shall become effective
on the date (which shall be at least two (2)
Business Days subsequent to the date of such
notice) specified therein; (ii) any election
to change from the Eurodollar Rate to the
Base Rate, or to change the applicable
Interest Period, with respect to the next
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applicable Interest Period, shall not become
effective prior to the end of the then
current applicable Interest Period; (iii) at
any given time, the maximum number of Loans
at the Eurodollar Rate made by any Bank
shall not exceed ten; and (iv) the minimum
aggregate principal amount of Loans at the
Eurodollar Rate made by all Banks for any
one Interest Period shall be not less than
$5,000,000. The telephonic notices provided
for herein shall be confirmed by the Agent
to the Borrower in writing which shall be
sent or mailed to the Borrower prior to the
end of the second Business Day following the
Business Day on which such telephonic notice
was given. As to any Bank, if the Borrower
fails in a timely fashion as set forth above
to make such election or to specify the
applicable Interest Period, the Base Rate
shall apply to such Bank's Loan or
applicable portion thereof.
ii. With respect to the Base Rate, interest shall be
computed on the actual number of days elapsed over a
year comprised of 365/366 days. Each change in the
interest rate as a consequence of a change in the
Base Rate shall take effect as of the opening of
business on the date announced for the effectiveness
of such change. Interest at the Eurodollar Rate shall
be computed on the basis of the actual number of days
elapsed over a year comprised of 360 days. The
Eurodollar Rate shall be determined by the Agent
which determination shall be conclusive absent
manifest error.
iii. Notwithstanding anything herein or in the Notes to
the contrary, if the Agent in its sole discretion
determines that on any date on which a Eurodollar
Rate is to be determined for the next Interest Period
elected by the Borrower, U.S. dollar deposits are not
generally available in the London interbank market
for such Interest Period in the amount of the Loan or
portion thereof for which the Eurodollar Rate has
been elected to be outstanding during such Interest
Period, or that reasonable means do not exist for
ascertaining the Eurodollar Rate, the Agent shall
promptly so notify the Borrower, and (unless the
Borrower elects a different Interest Period pursuant
to SUBDIVISION 2(b)(1)) the Base Rate shall
automatically be applicable to such Loan or portion
thereof. After such notice shall have been given and
until the circumstances giving rise to such notice no
longer exist, each election for the Eurodollar Rate
shall be deemed to be an election for the Base Rate.
Each
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determination by the Agent hereunder shall be
conclusive absent manifest error.
iv. For purposes of this Agreement, the Applicable Margin
shall be in effect as set forth below:
(1) for the period commencing on the Effective
Date and ending on the day immediately
preceding the next to occur Adjustment Date:
APPLICABLE MARGIN
Base Rate 0%
Eurodollar Rate 0.450%
(2) from and after the period specified in
SUBDIVISION 2(b)(4)(a), for each three-month
period commencing on an Adjustment Date and
ending on the day immediately preceding the
next succeeding Adjustment Date, the rate
per annum for the relevant type of Loan set
forth below opposite the Consolidated
Leverage Ratio determined as at the end of
the last fiscal quarter ended prior to the
first day of such period:
APPLICABLE MARGIN
EURODOLLAR RATE BASE RATE
Consolidated Leverage Ratio
is less than or equal to
.30 to 1.0 ("LEVEL I") 0.350% 0%
Consolidated Leverage Ratio
is less than or equal to
.40 to 1.0 but greater than
.30 to 1.0 ("LEVEL II") 0.450% 0%
Consolidated Leverage Ratio
is less than or equal to
.45 to 1.0 but greater than
.40 to 1.0 ("LEVEL III") 0.625% 0%
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Consolidated Leverage Ratio
is less than or equal to
.50 to 1.0 but greater than
.45 to 1.0 ("LEVEL IV") 0.750% 0%
Consolidated Leverage Ratio
is less than or equal to
.55 to 1.0 but greater than
.50 to 1.0 ("LEVEL V") 0.875% 0%
Consolidated Leverage Ratio
is greater than .55 to 1.0
("LEVEL VI" 1.250% 0.375%
(3) If by any Adjustment Date, the Borrower has
failed to deliver a Leverage Ratio
Certificate as at the end of the fiscal
quarter ended immediately prior to such
Adjustment Date interest for the next
succeeding three-month period shall be
computed as if the Consolidated Leverage
Ratio were at Level VI.
(4) For any period for which the Applicable
Margin is calculated based on a Leverage
Ratio Certificate which has been prepared
using unaudited fiscal year-end financial
statements of the Borrower, Borrower shall
submit a revised Leverage Ratio Certificate,
as soon as available, prepared using the
audited financial statements for such
period. In the event the Applicable Margin
changes as a result of the revised Leverage
Ratio Certificate, an adjustment shall be
made at the next Interest Payment Date,
which shall be either (i) a credit in the
amount of interest which has been overpaid
or (ii) payment of additional interest in
the amount of any deficiency, such credit or
deficiency to be determined by the Agent.
c. PREPAYMENT.
i. Upon termination or permanent reduction of the
Commitment, the Borrower shall make mandatory
prepayments required by SUBPARAGRAPHS 1(d) or 6(g),
together with all accrued but unpaid interest to the
date of prepayment on the principal
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amount of the Loans so prepaid. Subject to
SUBPARAGRAPH 2(i), any such prepayment shall be
without premium or penalty.
ii. The Borrower shall have the right, at any time or
from time to time, to prepay the outstanding
principal amounts of the Notes in whole or in part,
in the aggregate principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof,
upon not less than three (3) Business Days' written
or telecopier notice to the Agent, PROVIDED that to
the extent that the Borrower has elected to use the
Eurodollar Rate for any Loan, a prepayment may be
made only on the last day of the Interest Period
applicable thereto. At the time of each such payment
the Borrower shall pay all accrued but unpaid
interest to the date of prepayment on the principal
amount so prepaid. Subject to SUBPARAGRAPH 2(i), any
such prepayment shall be without premium or penalty.
d. FEES.
i. The Borrower shall pay all fees, required to be paid,
in the amounts and at the times set forth in (i) with
respect to the Agent, BAI and BancAmerica Securities,
the Fee Letter and, (ii) with respect to each Bank in
accordance with the Memorandum.
ii. The Borrower shall pay to the Agent for the account
of each Bank a commitment fee on the average daily
unused portion of the Commitment, being the amount by
which the Commitment of the Banks exceeds the sum of
(x) the aggregate principal amount of all outstanding
Loans and (y) the aggregate amount of all Letter of
Credit Outstandings. Such fee shall be computed on a
quarterly basis in arrears on the last Business Day
of each calendar quarter based upon the daily
utilization for that quarter, assuming a year
comprised of 360 days, as calculated by the Agent,
equal to (A) for the period from the Effective Date
and ending on the day immediately preceding the next
to occur Adjustment Date, 0.15% per annum and (B)
from and after the period specified in SUBDIVISION
2(b)(4)(a), for each three-month period commencing on
an Adjustment Date and ending on the day immediately
preceding the next succeeding Adjustment Date, the
rate per annum set forth below opposite the relevant
level of Consolidated Leverage Ratio determined as at
the end of the last fiscal quarter ended prior to the
first day of such period:
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CONSOLIDATED LEVERAGE RATIO
Level I 0.125%
Level II 0.15%
Level III 0.20%
Level IV 0.25%
Level V 0.30%
Level VI 0.375%;
PROVIDED, HOWEVER, that if by any Adjustment Date the Borrower has
failed to deliver a Leverage Ratio Certificate at the end of the fiscal
quarter ended immediately prior to such Adjustment Date, the commitment
fee for the next succeeding three-month period beginning on such
Adjustment Date and ending on the next succeeding Adjustment Date shall
be computed at the Level VI rate.
iii. The Borrower shall pay to the Agent for the account
of each Bank a letter of credit fee with respect to
the Letters of Credit computed on the average daily
maximum amount available to be drawn of outstanding
Letters of Credit, on a quarterly basis in arrears on
the last Business Day of each calendar quarter based
upon Letters of Credit outstanding for that quarter.
The rate applicable to the Letter of Credit fee shall
be equal to (i) for the period from the Effective
Date and ending on the day immediately preceding the
next to occur Adjustment Date, with respect to each
standby Letter of Credit 0.35% per annum and with
respect to each documentary Letter of Credit 0.15%
per annum and from and after the period specified in
SUBDIVISION 2(b)(4)(a), for each three-month period
commencing on an Adjustment Date and ending on the
day immediately preceding the next succeeding
Adjustment Date, the rate per annum set forth below
opposite the relevant level of Consolidated Leverage
Ratio determined as at the end of the last fiscal
quarter ended prior to the first day of such period:
CONSOLIDATED LEVERAGE RATIO
Standby Documentary
Letters of Credit Letters of Credit
----------------- -----------------
Level I 0.250% .125%
Level II 0.350% .15%
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Standby Documentary
Letters of Credit Letters of Credit
----------------- -----------------
Level III 0.525% .20%
Level IV 0.650% .25%
Level V 0.775% .30%
Level VI 1.150% .375%;
PROVIDED, HOWEVER, that if by any Adjustment Date the Borrower has failed to
deliver a Leverage Ratio Certificate at the end of the fiscal quarter ended
immediately prior to such Adjustment Date, the letter of credit fee for the next
succeeding three-month period beginning on such Adjustment Date and ending on
the next succeeding Adjustment Date shall be computed at the Level VI rate for
each standby Letter of Credit and documentary Letter of Credit. Such letter of
credit fee shall be due and payable quarterly in arrears on the last Business
Day of each calendar quarter during which each Letter of Credit is outstanding,
commencing on the first such quarterly date to occur after the Effective Date,
through the Stated Expiry Date, with the final payment to be made on the Stated
Expiry Date.
iv. The Borrower shall pay to the Issuer a letter of
credit fronting fee for each standby Letter of Credit
issued by the Issuer equal to 1/10% of the face
amount of such Letter of Credit. Such Letter of
Credit fronting fee shall be due and payable
quarterly in arrears on the last Business Day of each
calendar quarter.
v. The Borrower shall pay to the Issuer from time to
time on demand the normal issuance, presentment,
amendment and other processing fees, and other
standard costs and charges, of the Issuer relating to
each Letter of Credit as from time to time in effect.
e. LETTERS OF CREDIT.
i. REQUESTS. By delivering to the Agent
a written notice on or before 11:00
a.m., New York time, on a Business Day
on or prior to the Final Maturity Date,
specifying the Stated Amount of the
Letter of Credit, the date on which
such Letter of Credit is to be issued,
the name and address of the
beneficiary, the obligation such Letter
of Credit supports and the Stated
Expiry Date of such Letter of Credit,
the Borrower may, from time to time,
irrevocably request, on not less than
three (3) nor more than ten (10)
Business Days' notice, in the
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case of an initial issuance of a Letter
of Credit, and not less than ten (10)
days' prior notice, in the case of a
request for the extension of the Stated
Expiry Date of a Letter of Credit, that
the Issuer issue, or extend the Stated
Expiry Date of, as the case may be, an
irrevocable letter of credit in such
form as may be requested by the
Borrower and approved by the Issuer,
solely for the purposes described in
SUBPARAGRAPH 2(l); PROVIDED, HOWEVER,
that with respect to any request to
extend the Stated Expiry Date of any
outstanding Letter of Credit the
Borrower may make such request on any
Business Day on or prior to the Final
Maturity Date on the terms set forth in
this sentence. Upon receipt of such
written notice, the Agent shall
promptly notify the Issuer and each
Bank thereof. Each Letter of Credit
shall by its terms be stated to expire
on its Stated Expiry Date.
The Issuer will issue such Letter of Credit and make available to the
beneficiary thereof the original of each Letter of Credit which it
issues hereunder.
ii. OTHER BANKS' PARTICIPATION.
Automatically, and without further
action, upon the issuance of each
Letter of Credit, each Bank (other than
the Issuer) shall be deemed to have
irrevocably purchased from the Issuer,
to the extent of such Bank's
Percentage, a participation interest in
such Letter of Credit (including any
Reimbursement Obligation and any other
contingent liability with respect
thereto), and such Bank shall, to the
extent of its Percentage, be
responsible for reimbursing promptly
(and in any event within one (1)
Business Day after receipt of demand
for payment from the Issuer, together
with accrued interest from the day
following such demand at the Federal
Funds Rate) the Issuer for any
Reimbursement Obligation which has not
been reimbursed by the Borrower in
accordance with SUBDIVISION 2(e)(3). In
addition, such Bank shall, to the
extent of its Percentage, be entitled
to receive a ratable portion of the
Letter of Credit participation fee
payable pursuant to SUBPARAGRAPH 2(d)
with respect to each Letter of
-13-
Credit and a ratable portion of the
interest payable pursuant to
subparagraph 2(a).
iii. DISBURSEMENTS. Subject to the terms and
provisions of such Letter of Credit and
this Agreement, upon presentment of any
Letter of Credit to the Issuer for
payment, such Issuer shall make such
payment to the beneficiary (or its
designee) of such Letter of Credit on
the Disbursement Date. The Issuer of a
Letter of Credit will notify the
Borrower and each of the Banks promptly
of the presentment for payment of any
such Letter of Credit, together with
notice of the Disbursement Date
therefor. Prior to 11:00 a.m., New York
time, on the next Business Day
following the Disbursement Date, the
Borrower shall reimburse the Agent, for
the account of the Issuer, for all
amounts disbursed under such Letter of
Credit, together with all interest
accrued thereon since the Disbursement
Date, at the then applicable rate of
interest for Base Rate Loans.
iv. REIMBURSEMENT. The Reimbursement
Obligation and, upon the failure of the
Borrower to reimburse the Issuer, each
Bank's obligation under SUBDIVISION
2(e)(2) to reimburse the Issuer, shall
each be absolute and unconditional
under any and all circumstances and
irrespective of any setoff,
counterclaim or defense to payment
which the Borrower or such Bank, as the
case may be, may have or have had,
including any defense based upon the
failure of any Disbursement to conform
to the terms of the applicable Letter
of Credit (if, in the Issuer's good
faith opinion, such Disbursement is
determined to be appropriate) or any
non- application or misapplication by
the beneficiary of the proceeds of such
Letter of Credit; PROVIDED, HOWEVER,
that after paying in full its
Reimbursement Obligation hereunder,
nothing herein shall adversely affect
the right of the Borrower or such Bank,
as the case may be, to commence any
proceeding against the Issuer for any
wrongful Disbursement made by the
Issuer under a Letter of Credit as a
result of acts or
-14-
omissions constituting gross negligence
or willful misconduct on the part of
such Issuer.
v. DEEMED DISBURSEMENTS. Upon the
occurrence and during the continuation
of any event which, after the giving of
notice or lapse of time or both, would
constitute an event of default under
SUBDIVISION 7(a)(6) or, with notice
from the Agent, upon the occurrence and
during the continuation of any event of
default
(1) an amount equal to that portion of all
Letter of Credit Outstandings attributable
to the then aggregate amount which is
undrawn and available under all issued and
outstanding Letters of Credit shall, without
demand upon or notice to the Borrower, be
deemed to have been paid out or disbursed by
the Issuer under such Letters of Credit
(notwithstanding that such amount may not in
fact have been so paid out or disbursed);
and
(2) the Borrower shall be immediately obligated
to reimburse the Issuer for the amount
deemed to have been so paid or disbursed by
such Issuer. Any amounts so payable by the
Borrower pursuant to this SUBDIVISION
2(e)(5) shall be deposited in cash in an
account designated by the Agent and held as
collateral for application to the payment of
any Obligations. At such time when such
event or such event of default shall have
been cured or waived (and provided no other
default has occurred and is continuing and
the Loans have not been accelerated pursuant
to PARAGRAPH 7), the Agent shall return to
the Borrower all amounts then on deposit
with the Agent pursuant to this SUBDIVISION
2(e)(5), net of any amounts applied to the
payment of any Obligations.
vi. NATURE OF REIMBURSEMENT OBLIGATIONS.
The Borrower shall assume all risks of
the acts, omissions or misuse of any
Letter of Credit by the beneficiary
thereof. The Issuer (except to the
extent of its own gross negligence or
willful misconduct) shall not be
responsible for:
(1) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any Letter
of Credit or any document
-15-
submitted by any party in connection with
the application for and issuance of a
Letter of Credit, even if it should in fact
prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or
forged;
(2) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any
instrument transferring or assigning or
purporting to transfer or assign a Letter
of Credit or the rights or benefits
thereunder or the proceeds thereof in whole
or in part, which may prove to be invalid
or ineffective for any reason;
(3) failure of the beneficiary to comply fully
with conditions required in order to demand
payment under a Letter of Credit;
(4) errors, omissions, interruptions or delays
in transmission or delivery of any
messages, by mail, telecopier, telex or
otherwise; or
(5) any loss or delay in the transmission or
otherwise of any document or draft required
in order to make a Disbursement under a
Letter of Credit. None of the foregoing
shall affect, impair or prevent the vesting
of any of the rights or powers granted to
the Issuer or any Bank hereunder. In
furtherance and extension and not in
limitation or derogation of any of the
foregoing, any action taken or omitted to be
taken by an Issuer in good faith (and not
constituting gross negligence or willful
misconduct) shall be binding upon the
Borrower and each such Bank, and shall not
put such Issuer under any resulting
liability to the Borrower or any such Bank,
as the case may be.
f. PRO RATA TREATMENT. Each Credit Extension hereunder,
each reduction of the Commitment (except as provided
in SUBDIVISION 1(d)(3)), each election of the Base
Rate or the Eurodollar Rate (except as otherwise
provided in SUBPARAGRAPH 2(h)), each payment or
prepayment of principal or interest (except as
provided in SUBPARAGRAPH 2(g) below) on the Notes,
each payment obligation with respect to the Letter of
Credit Outstandings and each payment of the fees set
forth in SUBPARAGRAPH 2(d) shall be made or applied
among the Banks PRO RATA in accordance with their
respective Percentage,
-16-
PROVIDED that, if the proportion of the aggregate
principal amount of the outstanding Notes held by the
Banks shall vary from such original or revised
Percentages, then each payment or prepayment of
principal or interest on the Notes and payments on
the Letters of Credit shall be made or applied among
the Banks PRO RATA in accordance with the outstanding
principal amount of the Notes.
G. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
i. It is understood that the cost to the Banks of making
or maintaining Eurodollar Loans may fluctuate as a
result of the applicability of, or changes in,
reserve requirements imposed by the Board of
Governors of the Federal Reserve System of the United
States, including, but not limited to, reserve
requirements under Regulation D of such Board of
Governors ("REGULATION D") at the ratios provided for
in Regulation D from time to time. The Borrower
agrees to pay to each Bank from time to time, as
provided in SUBDIVISION (g)(3) below, such amounts as
shall be necessary to compensate such Bank for the
portion of the cost of making or maintaining any
Eurodollar Loans made by it resulting from any such
reserve requirements, it being understood that the
rates of interest applicable to Eurodollar Loans
hereunder have been determined on the hypothetical
assumption that no such reserve requirements exist or
will exist and that such rates do not reflect costs
imposed on the Banks in connection with such reserve
requirements. It is agreed that for purposes of this
SUBDIVISION (g)(1) the Eurodollar Loans made
hereunder shall be deemed to constitute Eurocurrency
liabilities as defined in Regulation D and to be
subject to the reserve requirements of Regulation D
without benefit or credit of proration, exemptions or
offsets which might otherwise be available to any
Bank from time to time under Regulation D.
ii. In the event that after the date hereof any change in
conditions or in applicable law or regulations or in
the interpretation or administration thereof
(including, without limitation, any request,
guideline or policy not having the force of law) by
any authority charged with the administration or
interpretation thereof shall occur which shall:
(1) subject any Bank to any tax with respect to
any Loan at the Eurodollar Rate (other than
any tax on the overall net
-17-
income of such Bank imposed by the United
States of America or by the jurisdiction in
which such Bank has its principal office or
any political subdivision or taxing
authority therein); or
(2) change the basis of taxation of any payment
to any Bank of principal of or interest on
or other fees and amounts payable on any
Loan at the Eurodollar Rate; or
(3) impose, modify or deem applicable any
reserve, deposit or similar requirement
against any assets held by, deposits with
or for the account of or loans or
commitments by an office of any Bank; or
(4) impose upon any Bank or the interbank
eurodollar market any other condition with
respect to Loans at the Eurodollar Rate or
this Agreement; and the result of any of
the foregoing shall be to increase the
actual cost to such Bank of making or
maintaining any Loan at the Eurodollar Rate
or to reduce the amount of any payment
(whether of principal, interest or
otherwise) received or receivable by such
Bank, or to require such Bank to make any
payment in connection with any Loan at the
Eurodollar Rate, in each case by or in an
amount which such Bank in its sole judgment
shall deem material, then and in each such
case the Borrower shall pay to such Bank,
as provided in SUBDIVISION (g)(3) below,
such amounts as shall be necessary to
compensate such Bank for such cost,
reduction or payment.
iii. Each Bank shall deliver to the Borrower from time to
time one or more certificates setting forth the
amounts due to such Bank under SUBDIVISIONS 2 (g)(1)
and 2(g)(2) and the changes as a result of which such
amounts are due. Each such certificate shall be
conclusive in the absence of manifest error. The
Borrower shall pay to each Bank the amounts shown as
due on any such certificate within ten days after its
receipt of the same. No failure on the part of any
Bank to demand compensation under SUBDIVISION 2(g)(1)
on any one occasion shall constitute a waiver of its
right to demand such compensation on any other
occasion; provided that any demand for compensation
pursuant to this SUBPARAGRAPH 2(g) relating to any
Interest Period for a Loan at the Eurodollar Rate
shall be made not later than the expiration of one
year after the last day
-18-
of such Interest Period. The protection of this
SUBPARAGRAPH 2(g) shall be available to each Bank
regardless of any possible contention of the
invalidity or inapplicability of any law, regulation
or other condition which shall give rise to any
demand by such Bank for compensation hereunder.
iv. Notwithstanding any other provision of this
Agreement, the Borrower shall not have any liability
under this SUBPARAGRAPH 2(g) as a result of any
change in a Bank's lending office, or an assignment
or participation of a Bank's rights or obligations
under this Agreement if such change, assignment or
participation would, but for the application of this
sentence, impose any liability on the Borrower under
this SUBPARAGRAPH 2(g) by reason of legal, regulatory
or other requirements in effect or pending at the
time of such change, assignment or participation.
v. In the event that any Bank shall have determined that
the adoption of any law, rule or regulation regarding
capital adequacy, affecting the banking industry
generally, or any change therein or in the
interpretation or application thereof or compliance
by any Bank with any request or directive affecting
the banking industry generally regarding capital
adequacy (whether or not having the force of law)
from any central bank or governmental authority, does
or shall have the effect of reducing the rate of
return on such Bank's capital as a consequence of its
obligations hereunder (including the Commitment of,
and Credit Extensions made by, such Bank) to a level
below that which such Bank could have achieved but
for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to
be material, then from time to time, after submission
by such Bank to the Borrower (with a copy to the
Agent) of a written notice of such reduction and as
soon as practicable thereafter, supporting
documentation with respect thereto, the Borrower
shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such
reduction, PROVIDED that the Borrower shall not be
required to make any such payments with respect to
any periods prior to receipt of written notice of
such reduction and PROVIDED FURTHER that no such
payment shall be due until the Borrower has received
supporting documentation with respect thereto which
supporting documentation shall be deemed to be
conclusive absent manifest error. Notwithstanding the
foregoing, to the
-19-
extent that the adoption of any such industry-wide
law, rule, regulation, request or directive regarding
capital adequacy is reflected in the rate of interest
paid by the Borrower on any Loan, the Borrower shall
not be obligated to make any such compensatory
payments to the Bank.
h. CHANGE IN LEGALITY. Notwithstanding any other
provision herein, in the event that any change after
the date hereof in applicable law or regulation or
the interpretation thereof by any governmental
authority charged with the administration or
interpretation thereof, shall at any time make it
unlawful for any Bank to make or maintain a Loan as
to which the Borrower has elected the Eurodollar
Rate, then upon the happening of such event, such
Bank may, by written notice to the Borrower,
i. declare that Loans bearing the Eurodollar Rate shall
not thereafter be made by such Bank hereunder,
whereupon the Borrower shall be prohibited from
requesting the Eurodollar Rate from such Bank
hereunder, unless such declaration is subsequently
withdrawn, and
ii. require that, at the end of the then current Interest
Period (or earlier if required by law), the
outstanding balance of such Loan be converted to a
Loan which shall bear interest at the Base Rate.
i. REIMBURSEMENT OF BANKS. The Borrower shall reimburse
each Bank on demand for any loss incurred or to be
incurred by it in the reemployment of the funds
released by any prepayment, acceleration or
conversion of any Loan for which the Eurodollar Rate
has been elected under any other provision of this
Agreement or otherwise if such Loan is prepaid or
converted other than on the last day of an Interest
Period for such Loan. Such loss shall be the
difference as reasonably determined (which
determination shall be conclusive and binding on the
Borrower absent manifest error) by such Bank between
its cost of obtaining the funds for the Loan being
prepaid or converted (based upon the Eurodollar Rate
applicable thereto) and any lesser amount that would
be realized by such Bank in reemploying the funds
received in prepayment (or realized from the Loan so
converted) during the period from the date of
prepayment, acceleration or conversion to the end of
the Interest Period of the Loan being prepaid or
converted at the Eurodollar Rate that would apply to
an Interest Period of such
-20-
duration. These covenants shall survive the
termination of this Agreement and payment of the
outstanding Notes.
j. INDEMNITY. Without duplication of indemnity
payments made pursuant to other provisions of this
Agreement, the Borrower will indemnify each Bank
against any actual loss or expense which such Bank
may sustain or incur as a consequence of any default
in payment or prepayment of the principal amount of
any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date
thereof, by notice of prepayment or otherwise), or
the occurrence of any Event of Default, including but
not limited to any such loss or expense sustained or
incurred in liquidating or employing deposits from
third parties acquired to effect or maintain such
Loan or any part thereof. Each Bank shall provide to
the Borrower a statement, signed by an officer of
such Bank and supported where applicable by
documentary evidence, explaining the amount of any
such actual loss or expense, which statement shall,
in the absence of manifest error, be conclusive with
respect to the parties hereto. These covenants shall
survive the termination of this Agreement and payment
of the outstanding Notes.
k. PAYMENTS. All payments by the Borrower hereunder and
under the Notes shall be made in U.S. dollars in
immediately available funds at the office of the
Agent by 12:00 noon, New York time, on the date on
which such payment shall be due. Should the principal
of, or any installment of the principal of, or
interest on, any of the Notes or any commitment fee
payable hereunder become due and payable on other
than a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, in
the case of principal or installment of principal,
interest shall be payable thereon at the rate herein
specified during any such extension; PROVIDED that
with respect only to any such payment of principal of
or interest on any such Note evidencing a Loan for
which the Eurodollar Rate has been elected, if such
next succeeding Business Day would fall in the next
calendar month, the due date of such payment shall be
shortened to the next preceding Business Day.
l. USE OF PROCEEDS. The Borrower will (1) use the net
proceeds of the Loans for working capital and general
corporate purposes (excluding any acquisition of an
Acquired Company), and (2) use the Letters of Credit
for working capital and general corporate purposes
(excluding any acquisition of an Acquired Company).
-21-
m. TAXES.
i. Each Bank shall timely provide the Borrower with all
forms, certificates and other documents necessary for
the Borrower to conclude that payments relating to
the loans and other amounts due hereunder are not
subject to, or are subject to a reduced rate of,
withholding under Sections 1441 and 1442 of the Code
(or under any successors to such sections).
ii. In the event the Borrower withholds taxes of any Bank
pursuant to Section 1441 or 1442 of the Code (or any
successor sections), the Agent shall make payments to
such Bank net of such withholding, in accordance with
the instructions furnished to the Agent by the
Borrower.
iii. The Agent shall act as United States withholding
agent for all purposes of the Code and the
regulations thereunder with respect to all amounts
payable under this Agreement.
iv. In the event any Bank makes an assignment of its
interest in the loans or commitments or changes its
lending installation with respect to the loans or
commitments, such Bank shall promptly inform the
Borrower that such assignment or change has occurred
and shall promptly provide the Borrower with such
details of the assignment or change as the Borrower
may reasonably request in order to comply with its
tax reporting requirements, if any.
n. SECURITY. All the Obligations, whether now or
hereafter existing, are secured by certain assets of
the Borrower pursuant to and in accordance with the
terms of the Pledge Agreement and the Security
Agreement.
-22-
3. REPRESENTATIONS AND
WARRANTIES.
The Borrower represents and warrants to the Banks as follows:
a. ORGANIZATION AND GOOD STANDING. Each of the Borrower
and its Subsidiaries is a corporation duly organized,
validly existing and in good standing, under the laws
of the state of its incorporation, and has the
corporate power to own its properties and to carry on
its business as now being conducted. As of the
Effective Date the Borrower has no Subsidiaries other
than those identified in Attachment 1 to the Pledge
Agreement.
b. CORPORATE AUTHORITY. The Borrower has full power and
authority to enter into this Agreement and the other
Loan Documents, to request the Credit Extensions
hereunder, to execute and deliver the Notes and to
incur the obligations provided for herein, all of
which have been duly authorized by all proper and
necessary corporate action. No consent or approval of
shareholders is required as a condition to the
validity of this Agreement, the Notes or any of the
other Loan Documents.
c. BINDING AGREEMENT. This Agreement constitutes, and
the Notes and each other Loan Document when executed
and delivered pursuant hereto for value received will
constitute, the valid and legally binding obligations
of the Borrower enforceable in accordance with their
respective terms except as may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by the
availability of equitable remedies or the application
of equitable principles.
d. NO CONFLICTING AGREEMENTS. The execution, delivery
and performance of this Agreement, the Notes and the
other Loan Documents and the making of the Credit
Extensions hereunder will not violate, conflict with,
constitute a default under, or result in the creation
of any lien or security interest on any property or
assets of the Borrower or any Restricted Subsidiary
pursuant to the provisions of any charter, by-law or
preference stock provision of the Borrower or any of
its Restricted Subsidiaries or any provision of any
existing mortgage, indenture, contract or agreement
binding on the Borrower or any of its Restricted
Subsidiaries, or affecting their respective
properties other than any such mortgage, indenture,
contract or
-23-
other agreement which is not material to the Borrower
and any of its Restricted Securities, taken as a
whole.
e. LITIGATION. There are no suits or administrative or
other proceedings or investigations pending, or to
the knowledge of the Borrower threatened, against or
affecting the Borrower or its Restricted
Subsidiaries, if any, (1) with respect to this
Agreement, the Notes or the other Loan Documents or
the transactions contemplated hereby or thereby or
(2) which could reasonably be expected to have a
material adverse effect on the financial condition of
the Borrower and its Restricted Subsidiaries, if any,
taken as a whole. Borrower has disclosed the
existence of the ▇▇▇▇▇ Corporation Litigation to
Agent and the Banks as described in the Opinion of
Counsel required under the Existing Credit Agreement.
f. TAX RETURNS AND PAYMENTS. All tax returns and reports
of the Borrower and its Restricted Subsidiaries, if
any, required by law to be filed with the government
of the United States and the government of any state
or any foreign jurisdiction, or with any taxing
authority thereof or therein, in which the Borrower
or any of its Restricted Subsidiaries is or is
required to be licensed or qualified to do business
have been duly filed; and all taxes, assessments,
fees and other governmental charges (other than those
presently payable without penalty and those currently
being contested in good faith and for which a reserve
or other appropriate provision, if any, as shall be
required by generally accepted accounting principles
shall have been made) shown on such returns or levied
or imposed upon or in respect of the interests,
assets, operations or income of the Borrower or any
of its Restricted Subsidiaries have been paid, other
than the filing of such tax returns or reports the
failure of which to file, and the payment of such
taxes, assessments, fees and other governmental
charges, the non-payment of which would not, either
in any case or in the aggregate, have a material
adverse effect on the financial condition of the
Borrower and its Restricted Subsidiaries, if any,
taken as a whole.
g. FINANCIAL STATEMENTS. The Borrower has furnished the
Banks with a consolidated balance sheet of the
Borrower as of December 31, 1996 and statements of
income, cash flow and changes in stockholders' equity
for the period then ended, accompanied by the report
thereon of the Borrower's independent public
accountants. Such financial statements,
-24-
including the related schedules and notes thereto, if
any, have been prepared in accordance with generally
accepted accounting principles and present fairly the
financial position of the Borrower and the results of
its operations as of the dates and for the periods
stated therein (subject to year-end footnotes and
audit adjustments). Since December 31, 1996, there
has been no change in the financial condition or the
operations of the Borrower and its Restricted
Subsidiaries, if any, other than changes which have
not been, either in any case or in the aggregate,
materially adverse to the financial condition of the
Borrower and its Restricted Subsidiaries taken as a
whole. Neither the Borrower nor any of its
consolidated subsidiaries had, at the date of the
most recent balance sheet referred to above, any
material contingent obligation, contingent
liabilities or liability for taxes, long-term lease
or unusual forward or long-term commitments, which is
material to the financial condition of the Borrower
and its consolidated subsidiaries taken as a whole
and is not reflected in the foregoing statements or
in the notes thereto.
h. COMPLIANCE WITH GOVERNMENT REGULATIONS. Except for
actions taken or filings made as described in Section
3.1.5 of the Security Agreement and Section 3.1.2 of
the Pledge Agreement, no action of, or filing with,
any governmental or public body is required on the
part of the Borrower as a condition to the valid
execution, delivery or performance of this Agreement,
the Notes or the other Loan Documents and the making
of the Credit Extensions hereunder. The execution,
delivery and performance of this Agreement, the Notes
and the other Loan Documents do not violate any
provision of any Federal, state or municipal law,
rule or regulation (including, without limitation,
Regulation U or X of the Board of Governors of the
Federal Reserve System), or any judgment, order or
decree binding on the Borrower.
i. EMPLOYEE BENEFIT PLANS. Based upon ERISA and the
regulations and published interpretations thereunder,
the Borrower and its Subsidiaries, if any, are, to
the best of the Borrower's knowledge, in compliance
or in the process of complying in all material
respects with the applicable provisions of ERISA,
subject to the provisions of Section 401(b) of the
Internal Revenue Code. No Reportable Event has
occurred with respect to any Plan or any
Multiemployer Plan.
-25-
j. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower
and its Restricted Subsidiaries has good record and
marketable title in fee simple to or valid leasehold
interests in all its real property, and good title to
all its other property, in each case to the extent
such property is material to the business and
financial condition of the Borrower and its
subsidiaries taken as a whole, and none of such
property is subject to any material Lien, except as
permitted in SUBPARAGRAPH 6(b).
-26-
4. CONDITIONS PRECEDENT.
a. EFFECTIVENESS. Notwithstanding any other provisions
of this Agreement, this Agreement shall not become
effective until the date on which each of the
following conditions set forth in this SUBPARAGRAPH
4(a) has been satisfied.
i. EXECUTION IN COUNTERPARTS. The Agent
shall have received counterparts of
this Second Amended and Restated
Credit Agreement duly executed by the
parties thereto.
ii. RESOLUTIONS, ETC. The Agent shall have
received
(1) from the Borrower a certificate, dated the
Effective Date, of its Secretary as to:
(a) resolutions of its Board of Directors,
then in full force and effect,
authorizing the execution, delivery
and performance of this Second Amended
and Restated Credit Agreement and
(b) the incumbency and signatures of those
of its officers authorized to act with
respect to this Second Amended and
Restated Credit Agreement,
upon which certificate the Agent and each Bank may
conclusively rely until the Agent shall have received a
further certificate of the Secretary of the Borrower canceling
or amending such prior certificate; and
(2) such other documents (certified if
requested) as the Agent or the Required
Banks may reasonably request with respect to
the transactions contemplated hereby.
iii. COMPLIANCE CERTIFICATE. The Agent
shall have received for each Bank a
certificate executed by the President,
any Vice President or the Treasurer of
the Borrower, dated the Effective
Date, to the effect that the Borrower
is then in compliance with all the
terms, covenants and conditions of
this Agreement which are binding upon
it; there shall exist no event of
default as designated in PARAGRAPH 7
and no event which, with the giving of
notice or the lapse of time or both,
would
-27-
constitute such an event of default;
and the representations and warranties
contained in PARAGRAPH 3 hereof,
Article III of the Security Agreement,
Article III of the Pledge Agreement
and Section 9 of the Letter of Credit
Agreement shall be true with the same
effect as though such representations
and warranties had been made on the
Effective Date.
iv. OPINIONS OF COUNSEL. The Agent and
each of the Banks shall have received
a favorable written opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel of
the Borrower, dated the Effective Date
and satisfactory in form and substance
to the Agent and its counsel, as to
the matters referred to in (i)
SUBPARAGRAPH 3(d) (to the extent of
his knowledge after due investigation
in the case of mortgages, indentures,
contracts and agreements referred to
therein) and (ii) SUBPARAGRAPH 3(e)
(other than the ▇▇▇▇▇ Corporation
Litigation).
v. CONFIRMATION. The Agent and the Banks
shall have received a confirmation
from the Borrower that the Notes, the
Letter of Credit Agreement, the
Security Agreement, the Pledge
Agreement and all Interest Rate
Protection Agreements between the
Borrower and any Bank or affiliates of
any Bank are still in full force and
effect.
vi. SECURITY AGREEMENT. The Agent shall
have received a list from the Borrower
of any additional locations where
collateral is located, dated as of the
Effective Date, together with
(1) acknowledgment copies of properly filed
Uniform Commercial Code financing statements
(Forms UCC-1, 2, or 3 as appropriate), dated
a date reasonably near to the Effective
Date, or such other evidence of filing as
may be acceptable to the Agent, naming the
Borrower as the debtor and the Collateral
Agent as the secured party, or other similar
instruments or documents, filed under the
Uniform Commercial Code of all jurisdictions
as may be necessary or, in the opinion of
the Agent, desirable to perfect or continue
the perfection of the security interest
-28-
of the Collateral Agent at such locations
pursuant to the Security Agreement;
(2) certified copies of Uniform Commercial Code
Requests for Information or Copies (Form
UCC-11), or a similar search report
certified by a party acceptable to the
Agent, dated a date reasonably near to the
Effective Date (or such later date as to
which the Agent may otherwise consent in
writing), listing all effective financing
statements which name the Borrower (under
its present name and any previous names) as
the debtor and which are filed in the
jurisdictions in which filings were made
pursuant to SUBDIVISION (a) above, together
with copies of such financing statements
(none of which (other than those described
in SUBDIVISION (a), if such Form UCC-11 or
search report, as the case may be, is
current enough to list such financing
statements described in SUBDIVISION (a)))
shall cover any collateral described in the
Security Agreement).
vii. PAYMENT OF FEES. The Borrower shall
have paid, in immediately available
funds, all fees required to be paid
hereunder and under the Fee Letter,
including Attorney's Costs. The
Borrower shall have paid to the
Agent on behalf of each Bank all
fees required to be paid under the
Memorandum.
viii. PAYMENT UNDER EXISTING CREDIT
AGREEMENT. All obligations due and
payable under the Existing Credit
Agreement shall have been paid in
full.
b. ALL CREDIT EXTENSIONS. Notwithstanding any other
provisions of this Agreement, the obligation of each
Bank and each Issuer to make any Credit Extensions
(including the initial Credit Extension in the case
of SUBDIVISION (1) below) shall be subject to the
following conditions:
i. NOTICE. The Borrower shall give the
applicable notice described in
SUBDIVISION 2(b)(1)(a) or 2(e)(1)
hereof, as the case may be, to the
Agent and to the Banks as may be
required by said SUBDIVISIONS. With
respect to Loans as to which the
Borrower has elected the Base Rate,
the Agent shall notify each Bank of
the principal amount of its Loan.
-29-
ii. COMPLIANCE CERTIFICATE. At the time
of each Credit Extension (other than
in connection with a change of the
rate of interest of a Loan
(including a change in the
applicable rate of interest as
between the Base Rate and the
Eurodollar Rate) without an increase
in the outstanding principal amount
of the Loans hereunder) the Borrower
shall then be in compliance with all
the terms, covenants and conditions
of this Agreement which are binding
upon it; there shall exist no event
of default as designated in
PARAGRAPH 7 and no event which, with
the giving of notice or the lapse of
time or both, would constitute such
an event of default; the
representations and warranties
contained in PARAGRAPH 3 hereof,
Article III of the Security
Agreement and Article III of the
Pledge Agreement shall be true with
the same effect as though such
representations and warranties had
been made at the time of the making
of such Credit Extension (except for
such changes thereto as are
expressly contemplated by the terms
of the Security Agreement or the
Pledge Agreement); and the Agent
shall have received (except in the
case of the initial Credit
Extension) a certificate
substantially in the form of EXHIBIT
D, dated the date of the making of
such Credit Extension and signed by
the President, a Vice President or
the Treasurer of the Borrower.
c. LEGAL MATTERS SATISFACTORY TO COUNSEL. All legal
matters incident to each Credit Extension (including
the initial Credit Extension) and the issuance of
each Note and Letter of Credit shall be satisfactory
to counsel for the Agent.
-30-
5. AFFIRMATIVE COVENANTS.
So long as any Commitment shall remain available hereunder or any
monetary Obligations have not been paid in full:
a. PAYMENT OF PRINCIPAL AND INTEREST ON THE NOTES,
LETTER OF CREDIT OUTSTANDINGS AND FEES HEREUNDER. The
Borrower will pay or cause to be paid the principal
of and interest on the Notes, Letter of Credit
Outstandings and the fees and all other amounts due
under this Agreement, in each case as the same
becomes due and payable.
b. MAINTENANCE OF OFFICE. The Borrower will maintain an
office or agency in Union, New Jersey (or such other
place in the United States of America as the Borrower
may designate in writing to the Agent), where
notices, presentations and demands to or upon the
Borrower may be given or made.
c. BOOKS AND ACCOUNTS. The Borrower will keep, and cause
each of its Restricted Subsidiaries to keep, proper
books of record and account in which proper entries
will be made of transactions in accordance with
generally accepted accounting principles; and will
provide each Bank with access at reasonable times to
such books and accounts and to financial and other
information prepared by the Borrower in the ordinary
course of its business. In addition, the Borrower
will permit each Bank to discuss the financial
affairs of the Borrower with the officers and
independent public accountants of the Borrower.
d. FINANCIAL STATEMENTS. The Borrower will furnish to
each of the Banks (1) as soon as available but in no
event later than 45 days after the end of each of the
first three quarters of each fiscal year of the
Borrower, consolidated balance sheets of the Borrower
and its Restricted Subsidiaries as of the close of
such quarter, consolidated statements of income and a
consolidated statement of changes in stockholders'
equity of the Borrower and its Restricted
Subsidiaries for such quarter (subject to year- end
footnotes and adjustments) and a consolidated
statement of cash flows of the Borrower and its
Restricted Subsidiaries for such quarter, certified
by the chief financial officer, or Treasurer of the
Borrower and accompanied by a certificate of such
officer stating whether any event has occurred which
constitutes an event of default as designated in
PARAGRAPH 7 or any event has occurred which, with the
giving of notice or the lapse of time or
-31-
both, would constitute such an event of default and,
if there has been any such event of default or other
event, stating the facts and the action which the
Borrower has taken or plans to take with respect
thereto, and demonstrating in reasonable detail
compliance at the end of such quarter with the
restrictions contained in SUBPARAGRAPHS 6(f) and 6(j)
and SUBDIVISIONS 6(e)(9) and 6(e)(10); (2) as soon as
available but in no event later than 120 days after
the close of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of the close of such
fiscal year, and consolidated statements of income,
cash flow and changes in stockholders' equity of the
Borrower and its Restricted Subsidiaries for such
fiscal year, audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. (or one
of the following five firms of independent public
accountants which has offices throughout the United
States: Ernst & Young, Coopers & ▇▇▇▇▇▇▇, Deloitte &
Touche, KPMG Peat Marwick or Price Waterhouse & Co.);
(3) as soon as available but in no event later than
120 days after the close of each fiscal year of the
Borrower, a report of the accounting firm which
audited the financial statements of the Borrower for
such fiscal year, stating whether anything in such
accounting firm's examination revealed the occurrence
of an event (insofar as such event pertains to
accounting matters) which constitutes an event of
default under PARAGRAPH 7 or of an event which, with
the giving of notice or the lapse of time or both,
would constitute such an event of default or other
event, and, if there has been any such event of
default or other event, stating the facts with
respect thereto (it being understood that such
accounting firm shall not be liable, directly or
indirectly, for any failure to obtain knowledge of
any such event unless such accounting firm should
have obtained knowledge thereof in making an audit in
accordance with generally accepted auditing
standards); (4) for purposes of calculating the
Leverage Ratio Certificate, as soon as available, but
in any event within 45 days after the close of any
fiscal year of the Borrower, an unaudited
consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of the close of such
fiscal year and unaudited consolidated statements of
income, for such fiscal year, certified by the chief
financial officer, or Treasurer of the Borrower; (5)
together with the annual financial statements the
Borrower furnishes pursuant to SUBDIVISION 5(d)(2), a
certificate containing the information described in
SUBDIVISION 5(d)(1) and also demonstrating in
reasonable detail compliance at the end of such
fiscal year with the restrictions contained in
SUBPARAGRAPH
-32-
6(j); (6) all current, quarterly or annual reports
filed by the Borrower with the SEC and all quarterly
and annual reports to the Borrower's shareholders;
and (7) such additional information, reports or
statements as the Agent or any Bank may from time to
time reasonably request.
e. TAXES. The Borrower will pay and discharge, and cause
each of its Restricted Subsidiaries, if any, to pay
and discharge, all taxes, assessments and
governmental charges levied or imposed upon or in
respect of the interests, income and properties of
the Borrower and each such Restricted Subsidiary
prior to the date on which penalties attach for the
nonpayment thereof, except such taxes, assessments
and governmental charges as are being contested in
good faith and by appropriate proceedings by the
Borrower or such Restricted Subsidiary and for which
such reserve or other appropriate provision, if any,
as shall be required by generally accepted accounting
principles shall have been made and except such
taxes, assessments and governmental charges the
nonpayment of which would not, in any case or in the
aggregate, have a material adverse effect on the
financial condition of the Borrower and its
Restricted Subsidiaries, if any, taken as a whole.
f. INSURANCE. The Borrower will maintain, and cause each
of its Restricted Subsidiaries, if any, to maintain,
insurance with responsible insurance companies, in
such amounts and against such risks as is customarily
maintained by similar businesses operating in the
same vicinity, provided that the Borrower and its
Restricted Subsidiaries, if any, may self-insure
against such risks and in such amounts as they may
reasonably deem appropriate in light of the
availability and cost of insurance for such risks,
their experience and such reserves, if any, as they
may have established in respect thereof. The Borrower
will, if reasonably possible, give the Agent, for the
benefit of the Banks not less than 30 days' prior
notice of any self-insurance not previously notified
to the Banks or the Agent pursuant to this
SUBPARAGRAPH 5(f). Upon the request of the Agent or
any Bank, the Borrower will file with the Agent a
detailed list of the insurance as then in effect
maintained by the Borrower and its Restricted
Subsidiaries, if any, stating the names of the
insurance companies, the amounts and rates of the
insurance, dates of the expiration thereof and the
risks covered thereby and indicating any
self-insurance by the Borrower and its Restricted
Subsidiaries, if any. Within 30 days after notice in
-33-
writing from the Agent, the Borrower shall obtain and
cause its Restricted Subsidiaries, if any, to obtain
such additional insurance as the Agent may reasonably
request and which the Borrower or any such Restricted
Subsidiary, as the case may be, may reasonably
obtain.
g. CORPORATE EXISTENCE. Subject to the provisions of
SUBPARAGRAPH 6(c), the Borrower will maintain, and
cause each of its Restricted Subsidiaries, if any, to
maintain, its corporate existence in good standing in
the jurisdiction of its incorporation.
h. NOTICE OF DEFAULT. The Borrower will promptly notify
the Agent and each Bank in writing of the occurrence
of any event of default as that term is designated in
PARAGRAPH 7 or event which, after the giving of
notice or the lapse of time or both, would constitute
such an event of default, stating the facts and the
actions which the Borrower plans to take with respect
thereto.
i. NOTICE OF MATERIAL ADVERSE CHANGE. The Borrower will
promptly give notice to the Agent and each Bank in
writing of a material adverse change in the business,
operations, property or financial or other condition
of the Borrower and its Subsidiaries taken as a
whole.
j. ERISA REPORTS. The Borrower will furnish to each of
the Banks (1) as soon as possible, and in any event
within 30 days after the Plan administrator of any
Plan of the Borrower or any of its Subsidiaries knows
or has reason to know that any Reportable Event with
respect to such Plan has occurred, a statement of the
chief financial officer, Controller or Treasurer of
the Borrower setting forth details as to such
Reportable Event and the action, if any, which is
proposed to be taken with respect thereto, together
with a copy of any notice of such Reportable Event
given by the Borrower or any Subsidiary to the
Pension Benefit Guaranty Corporation and (2) within
30 days after receipt thereof, a copy of any notice
the Borrower or any of its Subsidiaries may receive
from the Pension Benefit Guaranty Corporation
relating to the intention of such Corporation to
terminate any Plan or to appoint a trustee to
administer any Plan. The Borrower will promptly file
with the United States Secretary of Labor or the
Pension Benefit
-34-
Guaranty Corporation all annual and other reports
required to be filed by it with respect to each Plan.
k. REGULATION U. The Borrower will, at all times, comply
with all applicable provisions of Regulation U of the
Board of Governors of the Federal Reserve System.
l. FUTURE SUBSIDIARIES. Upon any Person becoming, after
the Effective Date, a Subsidiary of the Borrower, or
upon the Borrower acquiring additional capital stock
of any existing Subsidiary having voting rights or
contingent voting rights, the Borrower shall notify
the Agent of such acquisition, and, unless otherwise
agreed to between the Borrower and the Required
Banks, the Borrower shall, pursuant to a pledge
agreement substantially in the form of the Pledge
Agreement, pledge to the Collateral Agent, for its
benefit and that of the Banks and BAI (pursuant to
the BAI Letters of Credit), all (or in the case of a
Subsidiary that is a "controlled foreign corporation"
within the meaning of Section 957 of the Internal
Revenue Code of 1986, as amended, or any successor
provision, 65%) of the outstanding shares of such
capital stock of such Subsidiary owned or held by the
Borrower, along with undated stock powers for such
certificates, executed in blank (or, if any such
shares of capital stock are uncertificated,
confirmation and evidence satisfactory to the
Collateral Agent and the Agent that the security
interest in such uncertificated securities has been
transferred to and perfected by the Collateral Agent,
for its benefit and that of the Banks and BAI
(pursuant to the BAI Letters of Credit), in
accordance with Section 8-313 and Section 8-321 of
the Uniform Commercial Code, as in effect in the
State of New York, or any similar law which may be
applicable), together with such opinions of legal
counsel, in form and substance reasonably
satisfactory to the Agent and the Banks, as the Agent
may reasonably require.
-35-
6. NEGATIVE COVENANTS.
So long as any Commitment shall remain available hereunder or any
monetary Obligations have not been paid in full the Borrower agrees that,
without the prior written consent of the Banks as provided in PARAGRAPH 10:
a. BORROWINGS. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, create,
incur or assume any liability in respect of Funded
Debt or Short-Term Borrowings except:
i. with respect to the Borrower:
(1) the Notes and the Letters of Credit;
(2) the BAI Letters of Credit;
(3) Funded Debt created, incurred or assumed (by
Guarantee or otherwise) in connection with
any IRB Financing or secured by mortgages,
liens or other security interest permitted
by SUBPARAGRAPH 6(b); and
(4) other Subordinated Funded Debt approved in
writing by the Required Banks.
ii. with respect to any Restricted Subsidiaries:
(1) Funded Debt
(a) secured by any mortgage, pledge,
lien, security interest or other
encumbrance of any kind (1) to
secure or provide for the payment
or financing of any part of the
purchase price of property acquired
after the date hereof (other than
through the acquisition of an
Acquired Company) and granted at
the time of or within 90 days after
the acquisition of such property or
existing on such property at the
time of acquisition thereof,
whether or not assumed, or (2) in
property of any Acquired Company
existing at the time of the
acquisition thereof, PROVIDED that
the aggregate principal amount of
all such secured Funded Debt
secured by any such property of an
Acquired Company shall not exceed
15% of Stockholders' Equity; or
-36-
(b) created, incurred or assumed (by
Guarantee or otherwise) in
connection with any IRB Financing;
PROVIDED that, immediately after
giving effect to the creation,
incurrence or assumption thereof,
the aggregate principal amount of
all such Funded Debt shall not
exceed 15% of Stockholders' Equity.
Notwithstanding the foregoing
provisions of SUBDIVISIONS (i) and
(ii), the sum of the aggregate
principal amount of all Funded Debt
secured by property of any Acquired
Company existing at the time of the
acquisition thereof plus the
aggregate principal amount of all
Funded Debt created, incurred or
assumed (by Guarantee or otherwise)
in connection with any IRB
Financing immediately after giving
effect thereto shall not exceed 25%
of Stockholders' Equity.
iii. with respect to the Borrower and any Restricted
Subsidiary:
(1) unsecured Short-Term Borrowings of the
Borrower or its Restricted Subsidiaries
incurred in the ordinary course of business,
PROVIDED that (i) immediately after giving
effect to the creation, incurrence or
assumption thereof, the aggregate principal
amount of such unsecured Short-Term
Borrowings shall not exceed $10,000,000, and
(ii) no such Short-Term Borrowings shall be
outstanding on any day unless for a period
of at least 30 consecutive days during the
12-month period immediately preceding such
day either (1) there shall have been
outstanding no such Short-Term Borrowings or
(2) there shall have been available during
such 30-day period an unused Commitment
pursuant to this Agreement in an amount
which at least equals such Short-Term
Borrowings;
For the purpose of calculating the maximum amount set forth in
(3)(a)(i) above, the Short-Term Borrowings set forth in
EXHIBIT E to the Existing Credit Agreement as items (i) and
(ii) shall be excluded.
(2) Funded Debt and Short-Term Borrowings
included on EXHIBIT E to the Existing Credit
Agreement, and any renewals, extensions,
draw-downs or refundings thereof; and
-37-
(3) Funded Debt or Short-Term Borrowings
constituting
(a) loans or advances by the Borrower to
any of its Restricted Subsidiaries
or any Person which simultaneously
therewith becomes an Acquired
Company;
(b) loans or advances by any Restricted
Subsidiary to the Borrower or to
another Restricted Subsidiary of the
Borrower; or
(c) Investments by the Borrower in any
Restricted Subsidiary of the
Borrower or any Person which
simultaneously therewith becomes an
Acquired Company or by any
Restricted Subsidiary of the
Borrower in the Borrower or another
Restricted Subsidiary of the
Borrower or in any Person which
simultaneously therewith becomes an
Acquired Company.
(4) Indebtedness arising under Interest Rate
Protection Agreements entered into with any
Bank.
b. MORTGAGES, ETC. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, create,
incur, assume or suffer to exist any mortgage,
pledge, lien, security interest or other encumbrance
of any kind (including the charges upon property
purchased under conditional sales or other title
retention agreements) upon or in, any of its property
or assets, whether now owned or hereafter acquired,
except:
i. liens securing payment of the Credit Extensions and
the BAI Letters of Credit pursuant to the Pledge
Agreement and the Security Agreement;
ii. liens for taxes or other governmental charges the
payment of which is not at the time required by
SUBPARAGRAPH 5(e);
iii. liens in connection with workers' compensation,
unemployment insurance or other social security
obligations;
-38-
iv. deposits or pledges to secure bids, tenders,
contracts (other than contracts for the payment of
money), leases, statutory obligations, surety and
appeal bonds and other obligations of like nature
arising in the ordinary course of business
v. mechanics', workers', materialmen's, landlords',
carriers', or other like liens arising in the
ordinary course of business with respect to
obligations which are not due or which are being
contested in good faith by appropriate proceedings if
such reserve or other appropriate provision, if any,
as shall be required by generally accepted accounting
principles shall have been made therefor;
vi. the mortgages, pledges and liens, security interests
and other encumbrances included on EXHIBIT E to the
Existing Credit Agreement, including any renewal,
extension or refunding thereof, PROVIDED the
Indebtedness relating to such renewal, extension or
refunding shall not exceed 80% of the fair market
value of the property covered thereby as determined
by an independent appraiser of recognized standing
reasonably acceptable to the Agent;
vii. any mortgage, pledge, lien, security interest or
other encumbrance of any kind (a) to secure or
provide for the payment or financing of any part of
the purchase price of property acquired after the
date hereof by the Borrower or any of its Restricted
Subsidiaries (other than through the acquisition of
an Acquired Company) and granted at the time of or
within 90 days after the acquisition of such property
or existing on such property at the time of
acquisition thereof, whether or not assumed, or (b)
secured by property of any Acquired Company existing
at the time of the acquisition of such Acquired
Company, or (c) created, incurred, assumed,
established, renewed or suffered to exist in
connection with any IRB Financing permitted by
SUBPARAGRAPH 6(a); PROVIDED that:
(1) the principal amount of any Indebtedness
referred to in SUBDIVISION 6(b)(7)(a) shall
not exceed 80% of the greater of (x) the
cost of the newly acquired property or
improvements covered thereby to the Borrower
or any of its Restricted Subsidiaries
acquiring the same or (y) the fair market
value of such property or improvements, as
determined by an independent appraiser of
recognized standing reasonably acceptable to
the Agent; and
-39-
(2) each such mortgage, pledge, lien, security
interest or other encumbrance shall be
confined only to the property referred to in
SUBDIVISION 6(b)(7)(a) or (b) or financed by
the IRB Financing referred to in SUBDIVISION
6(b)(7)(c), as the case may be, and, if
required by the terms of the instrument
originally creating such mortgage, lien,
security interest or other encumbrance,
other property which is an improvement to,
or which is acquired for specific use in
connection with, or which is real property
being improved by, such property;
viii. any mortgage, pledge, lien, security interest or
other encumbrance of any kind on, or in, any "margin
stock", as at the time defined in Regulation U of the
Board of Governors of the Federal Reserve System;
ix. any mortgage, pledge, lien, security interest or
other encumbrance of any kind in connection with
import letters of credit incurred by the Borrower in
the ordinary course of its business; and
x. other mortgages, pledges, liens, security interests
or other encumbrances of any kind upon or in any
properties or assets of the Borrower if, immediately
after giving effect thereto, the aggregate principal
amount of all Indebtedness of the Borrower secured by
all such mortgages, pledges, liens or other
encumbrances or security interests does not exceed 5%
of Stockholders' Equity.
c. CONSOLIDATION, MERGER OR SALE OF ASSETS. The Borrower
will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
i. consolidate with or merge into any other Person,
PROVIDED that the foregoing shall not prevent (a)
consolidations or mergers of a Restricted Subsidiary
of the Borrower with or into the Borrower or with or
into another Restricted Subsidiary of the Borrower or
with or into a Person which simultaneously therewith
becomes a Restricted Subsidiary of the Borrower, or
(b) consolidations or mergers in which the continuing
or surviving corporation is the Borrower or a
Restricted Subsidiary of the Borrower, or a Person
which simultaneously therewith becomes a Restricted
Subsidiary of the Borrower, or (c) the
-40-
consolidation of the Borrower with or the merger of
the Borrower into any other corporation if (i) the
continuing or surviving corporation expressly assumes
in writing the obligations of the Borrower under this
Agreement and (ii) immediately after giving effect
thereto, such corporation could incur at least $1 of
additional Funded Debt under SUBDIVISION 6(a)(1) and
no event of default under SUBPARAGRAPH 7(a) shall
exist and no event which, after the giving of notice
or the lapse of time or both, would constitute such
an event of default shall exist; or
ii. sell or otherwise dispose of all or any part of the
assets of the Borrower and its Restricted
Subsidiaries other than (a) in the ordinary course of
business, or (b) to the Borrower or another
Restricted Subsidiary, so long as, after giving
effect thereto, no event of default under
SUBPARAGRAPH 7(a) shall exist and no event which,
after the giving of notice or lapse of time or both,
would constitute an event of default shall exist, or
(c) the sale or other disposition of the assets of
any of its Restricted Subsidiaries which is not a
Significant Restricted Subsidiary of the Borrower, so
long as, after giving effect thereto, no event of
default under SUBPARAGRAPH 7(a) shall exist and no
event which, after the giving of notice or lapse of
time or both, would constitute an event of default
shall exist, or (d) the sale or other disposition of
any "margin stock", as at the time defined in
Regulation U of the Board of Governors of the Federal
Reserve System, or (e) the sale or other disposition
of all or substantially all of the assets of the
Borrower to any corporation into which the Borrower
could be merged under SUBDIVISION 6(c)(l)(c),
PROVIDED that each of the conditions of such
subdivision shall have been fulfilled with the same
effect as though such sale of assets were a merger of
the Borrower into the acquiring corporation, or (f)
any sale for cash in which such cash, when taken
together with the cash proceeds of all other asset
sales (other than asset sales otherwise permitted by
this SUBDIVISION (2)) since the Effective Date, does
not exceed $5,000,000.
d. LOANS, ADVANCES AND CONTINGENT LIABILITIES. The
Borrower will not, and will not permit any of its
Restricted Subsidiaries, if any, to make loans or
advances to any other Person or give a Guarantee of,
assume, endorse, or otherwise become contingently
liable upon the obligation of any other Person, in
excess in the aggregate in respect of all such loans,
advances,
-41-
Guarantees, assumptions, endorsements and contingent
liabilities of 7% of Stockholders' Equity except:
i. loans or advances by the Borrower to any of its
Restricted Subsidiaries or to any Person which
simultaneously therewith becomes an Acquired Company;
ii. loans or advances by any Restricted Subsidiary to the
Borrower or to another Restricted Subsidiary of the
Borrower;
iii. Guarantees by the Borrower or by any of its
Restricted Subsidiaries of obligations or liabilities
(other than for the payment of borrowed money)
incurred in the ordinary course of business by the
Borrower or of any of its Restricted Subsidiaries or
by any Person which simultaneously therewith becomes
an Acquired Company;
iv. assumptions by the Borrower or any of its Restricted
Subsidiaries of obligations or liabilities of any
Acquired Company in connection with the acquisition
thereof;
v. the endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary
course of business;
vi. Guarantees in connection with IRB Financings
permitted by SUBPARAGRAPH 6(a) or listed on EXHIBIT E
to the Existing Credit Agreement;
vii. contingent liabilities arising in connection with the
Letters of Credit or the BAI Letters of Credit; or
viii. other loans, advances, Guarantees, assumptions,
endorsements and contingent liabilities, PROVIDED
that, immediately after giving effect to the
creation, incurrence or assumption thereof, the
aggregate principal amount of such loans, advances,
Guarantees, assumptions, endorsements and contingent
liabilities shall not exceed $5,000,000.
e. INVESTMENTS. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to make,
incur, assume,or suffer to exist any Investment in
any other Person except:
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i. Investments in marketable direct obligations issued
or unconditionally guaranteed by the United States of
America or any agency thereof maturing within one
year from the date of acquisition thereof;
ii. Investments in marketable direct obligations issued
by any state of the United States of America or any
political subdivision of any such state or any public
instrumentality thereof maturing within one year from
the date of acquisition thereof and currently having
at least an A Rating from either Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc.;
iii. Investments in commercial paper currently having at
least an A rating from either Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc.,
maturing not more than 270 days from the date of the
creation thereof and not directly or indirectly
renewable or extendable at the option of the debtor
by its terms or by the terms of any instrument or
agreement relating thereto to a date more than 270
days from the date of creation thereof;
iv. Investments in certificates of deposit issued by any
bank incorporated under the laws of the United States
or any state thereof or the District of Columbia and
having a combined capital and surplus of not less
than $50,000,000;
v. Investments in bankers' acceptances eligible for
rediscount under requirements of The Board of
Governors of the Federal Reserve System and accepted
by a bank of the type described in SUBDIVISION
6(e)(4);
vi. Investments in obligations of the type described in
SUBDIVISIONS 6(e)(1) through 6(e)(4) purchased from a
bank of the type described in SUBDIVISION 6(e)(4)
pursuant to repurchase agreements obligating such
bank to repurchase such obligations not later than 90
days after the purchase thereof;
vii. Investments by the Borrower in any Restricted
Subsidiary of the Borrower or any Person which
simultaneously therewith becomes an Acquired Company
or by any Restricted Subsidiary of the Borrower in
the Borrower or another Restricted Subsidiary of the
Borrower or in any Person which simultaneously
therewith becomes an Acquired Company;
-43-
viii. Investments in any Person pursuant to a plan for the
acquisition of a majority of the Voting Stock of such
Person, PROVIDED that either (a) the Borrower and its
Restricted Subsidiaries shall acquire a majority of
such Voting Stock issued and outstanding within nine
months of the date of the first acquisition of any
such Voting Stock under such plan, or (b) if such
acquisition of a majority of Voting Stock shall not
have been completed within nine months after the
initial Investment in such Person all Investments in
such Person theretofore acquired shall be treated as
assets other than current assets for the purpose of
this Agreement;
ix. Investments in settlement of Indebtedness created in
the ordinary course of business owing to the Borrower
or any of its Subsidiaries, PROVIDED that the amount
of Indebtedness settled by the receipt of such
Investments during any calendar year shall not exceed
1% of the consolidated revenues of the Borrower and
its Restricted Subsidiaries during such year;
x. Investments in any Person (other than Investments
permitted by the preceding subdivisions of this
SUBPARAGRAPH 6(e)), PROVIDED that the aggregate value
of all such Investments on the books of the Borrower
and its Restricted Subsidiaries immediately after
giving effect to any such Investment in any such
Person shall not exceed 7% of Stockholders' Equity;
and
xi. Restricted Investment.
f. PAYMENTS ON STOCK; RESTRICTED INVESTMENT.
i. Except as provided hereinafter in this SUBPARAGRAPH
6(f), the Borrower will not make, and will not permit
any of its Restricted Subsidiaries to make, any
Payment on Stock or Restricted Investment, other than
a Permitted Buyback, unless, immediately after giving
effect to the proposed Payment on Stock or Restricted
Investment, the sum of the aggregate amount of all
Payments on Stock (other than Permitted Buybacks)
subsequent to the Effective Date to and including the
date of such proposed Payment on Stock or Restricted
Investment, plus the aggregate amount of all
Restricted Investments made by the Borrower or any
Restricted Subsidiary during such period (but
disregarding any Investment which was a Restricted
Investment when made, but which on the date of
determination could have been made pursuant to one of
the
-44-
subdivisions of SUBPARAGRAPH 6(e) other than
SUBDIVISION 6(e)(10) and (11)), shall not exceed the
sum of (a) $5,000,000, plus (b) 40% of Net Income
subsequent to January 1, 1997 (taken as a single
accounting period). Notwithstanding the foregoing,
(x) no Payment on Stock (other than Permitted
Buybacks) or Restricted Investment may be declared or
made until on or after the first date on which, after
giving effect thereto, Aggregate Senior Funded Debt
would be equal to or less than 100% of Stockholders'
Equity and (y) any dividend which could be paid in
compliance with this PARAGRAPH 6(f) at the date of
its declaration may continue to be paid
notwithstanding any subsequent change, which change
was unforeseen at the time of the declaration of such
dividend.
ii. Notwithstanding the terms of the foregoing
SUBDIVISION (1), the Borrower may purchase or
otherwise acquire shares of its capital stock in an
aggregate amount not to exceed $500,000 during the
term of this Agreement for the purpose of awarding
such stock to its employees, agents, representatives
or other persons transacting business with the
Borrower; PROVIDED, however, that any such Payments
on Stock shall be included in determining whether the
Borrower satisfies the requirements of the first
sentence of SUBDIVISION (1).
iii. The Borrower may make Permitted Buybacks at any time.
g. SALE AND LEASEBACK. The Borrower will not, and will
not permit any Restricted Subsidiary to, enter into
any arrangement whereby the Borrower or such
Restricted Subsidiary shall sell or transfer,
directly or indirectly, all or any substantial part
of its fixed assets in anticipation of the leaseback
of such assets within one year PROVIDED, HOWEVER,
Sale and Leasebacks shall be permitted provided (i)
the proceeds of any Sale and Leaseback shall be used
to make a prepayment on the principal amount of Loans
pursuant to SUBDIVISION 2(c)(1) and (ii) that the
amount thereof be deemed a reduction in the
Commitment, in the same amount as the prepayment,
pursuant to SUBPARAGRAPH (1)(d).
h. OBLIGATIONS AS LESSEE. The Borrower will not, and
will not permit any of its Restricted Subsidiaries
to, directly or indirectly, enter into any lease of
real or personal properties or assets, unless after
giving effect to payments under any such proposed
lease, aggregate payments due in any one fiscal year
under all
-45-
such leases shall not exceed the greater of
$10,000,000 or 10% of Stockholders' Equity. Leases
covered by this SUBPARAGRAPH 6(h) shall be only those
which are not capitalized under generally accepted
accounting principles.
i. NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. The
Borrower will not, and will not permit any of its
Subsidiaries to, enter into any agreement (excluding
this Agreement, any other Loan Document, any
agreement governing indebtedness which is both
permitted to be incurred pursuant to SUBPARAGRAPH
6(a) and secured by mortgages, liens or other
security interests permitted by SUBPARAGRAPH 6(b) or,
with respect to SUBDIVISION (1) below, the agreements
disclosed in EXHIBIT E) prohibiting:
i. the creation or assumption of any lien upon its
properties, revenues or assets, whether now owned or
hereafter acquired, or the ability of the Borrower or
any other Person to amend or otherwise modify this
Agreement or any other Loan Document; or
ii. the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower by way of
dividends, advances, repayments of loans or advances,
reimbursements of management and other intercompany
charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement
which restricts the ability of any such Subsidiary to
make any payment, directly or indirectly, to the
Borrower.
j. FINANCIAL COVENANTS. Borrower will not:
i. permit its Net Worth after January 1, 1997 to be less
than $70,000,000 plus 60% of Net Income (without a
reduction for net losses, as determined in accordance
with Generally Accepted Accounting Principles) from
and after such date.
-46-
ii. permit its Interest Coverage Ratio as determined for
any Measurement Period to be less than 3.00 to 1.0.
iii. permit its Consolidated Leverage Ratio to be greater
than .60 to 1.0.
-47-
7. EVENTS OF DEFAULT.
a. NATURE OF EVENTS. If one or more of the following
events of default shall occur:
i. DEFAULT IN PAYMENT OF OBLIGATIONS.
The Borrower shall fail to make
payment of any part of the principal
of or interest upon any Note, any
Reimbursement Obligation or Letter
of Credit or any deposit of cash for
collateral purposes pursuant to
SUBDIVISION 2(e)(3) or 2(e)(5), or
any fees or other payments owing
pursuant to PARAGRAPH 2 when due and
payable, whether at stated maturity
or by acceleration, or otherwise; or
ii. INCORRECT REPRESENTATION. Without
limiting SUBPARAGRAPH 7(a)(10)(iii),
any representation or warranty made
by the Borrower herein or any
statement or representation made in
any certificate, report, or other
document delivered pursuant hereto
shall prove to have been incorrect
in any material respect when made or
deemed made; or
iii. DEFAULT UNDER CERTAIN COVENANTS. The
Borrower shall fail to observe or
perform any term, covenant or
agreement contained in PARAGRAPH 6;
iv. DEFAULT UNDER OTHER PROVISIONS. The
Borrower shall fail to observe or
perform any other term, covenant or
agreement contained in this
Agreement and such failure shall
continue for 30 days after written
notice thereof shall have been given
to the Borrower by the Agent or any
of the Banks; or
v. CROSS DEFAULT. Any Funded Debt or
Short-Term Borrowings of the
Borrower or any Restricted
Subsidiary (other than the Notes) in
excess of $400,000 becomes or is
declared to be due and payable prior
to the stated maturity thereof or
the Borrower or any of its
Restricted Subsidiaries defaults in
the performance of or compliance
with any term of any agreement
evidencing or securing such Funded
Debt or Short-Term Borrowings and
the effect of such default would be
to permit or
-48-
shall have caused the acceleration
of the payment of such Funded Debt
or Short-Term Borrowings and such
default shall continue for more than
the period of grace, if any,
specified in such agreement and
shall not have been cured or waived
by the holders of such Funded Debt
or Short-Term Borrowings; or the
Borrower shall fail to make payment,
when due and payable, of any amounts
owing under the BAI Letters of
Credit; or any other event shall
have occurred which shall constitute
an Event of Default under Section 13
of the Letter of Credit Agreement;
or
vi. BANKRUPTCY, ETC. The Borrower or any
Restricted Subsidiary shall (i) be
generally not paying its debts as
they become due, (ii) file, or
consent by answer or otherwise to
the filing against it of, a petition
for relief or reorganization or
arrangement or any other petition in
bankruptcy, for liquidation or to
take advantage of any bankruptcy or
insolvency law of any jurisdiction,
(iii) make an assignment for the
benefit of its creditors, (iv)
consent to the appointment of a
custodian, receiver, trustee or
other officer with similar powers of
itself or of any substantial part of
its property, (v) be adjudicated
insolvent or be liquidated or (vi)
take corporate action for the
purpose of any of the foregoing, or
(vii) if a court or governmental
authority of competent jurisdiction
shall enter an order appointing,
without consent by the Borrower or
any Restricted Subsidiary, a
custodian, receiver, trustee or
other officer with similar powers
with respect to it or with respect
to any substantial part of its
property, or (viii) if an order for
relief shall be entered in any case
or proceeding for liquidation or
reorganization or otherwise to take
advantage of any bankruptcy or
insolvency law of any jurisdiction,
or ordering the dissolution,
winding-up or liquidation of the
Borrower or any Restricted
Subsidiary, or (ix) if any petition
for any such relief shall be filed
against the Borrower or a Restricted
Subsidiary and such petition shall
not be dismissed within 60 days; or
-49-
vii. UNPAID JUDGMENT. A final judgment
for the payment of money in excess
of $400,000 shall be rendered
against the Borrower or any of its
Restricted Subsidiaries and within
60 days after entry thereof such
judgment shall not have been
discharged or execution thereof
stayed pending appeal or within 30
days after the expiration of any
such stay such judgment shall not
have been discharged; or
viii. MATERIAL REPORTABLE EVENTS. A
Reportable Event shall have occurred
with respect to any Plan and shall
be continuing for 30 days after the
Agent shall have notified the
Borrower in writing that the
Required Banks have made a
determination that, on the basis of
such Reportable Event, (a) in the
case of a Plan other than a
Multi-employer Plan, there are
reasonable grounds for the
termination of such Plan by the
Pension Benefit Guaranty Corporation
or for the appointment by the
appropriate United States District
Court of a trustee to administer
such Plan and the liabilities of the
Borrower or any of its Restricted
Subsidiaries arising as a result of
such termination or appointment
would decrease Stockholders' Equity
by 10% or more, or (b) in the case
of a Multi-employer Plan, there are
reasonable grounds for the
reorganization within the meaning of
ERISA of such Multi-employer Plan
and the liabilities of the Borrower
and its Restricted Subsidiaries
arising as a result of such
reorganization would decrease
Stockholders' Equity by 10% or more,
unless the Borrower and its
Restricted Subsidiaries have
satisfied such liabilities or have
made such reserves as are required
by generally accepted accounting
principles against such liabilities,
and after giving effect to such
satisfaction or reserves, the
Borrower is not in violation of any
covenant in PARAGRAPH 6 in which
event such holders (or such Banks)
shall not have the right to make
such determination (which would
otherwise give rise to an event of
default); or there is a complete or
partial withdrawal by the Borrower
or any of its Subsidiaries from a
Multi-employer Plan and the
liabilities of the Borrower and its
-50-
Restricted Subsidiaries arising as a
result of such withdrawal decrease
Stockholders' Equity by 10% or more;
or
ix. CONTROL OF THE BORROWER. Any Change
in Control shall occur; or
x. IMPAIRMENT OF SECURITY, ETC. (i) Any
security interest or lien granted
pursuant to the Security Agreement
or the Pledge Agreement shall
(except in accordance with its
terms), in whole or in part,
terminate, cease to be effective or
cease to be the legally valid,
binding and enforceable obligation
of the Borrower or other obligor
party thereto; (ii) the Borrower or
any other Person shall, directly or
indirectly, contest in any manner
such effectiveness, validity,
binding nature or enforceability
and, with respect to any such other
Person, such contest shall have a
reasonable likelihood of being
material; or (iii) any
representation or warranty made by
the Borrower in Section 3.1.5 of the
Security Agreement or Section 3.1.2
of the Pledge Agreement shall prove
to be incorrect when made in any
respect;
then (i) upon the happening of any of the events of default specified in
SUBDIVISION 7(a)(6) above (other than such an event of default described in
CLAUSE (i) of SUBDIVISION 7(a)(6) or described in CLAUSE (vi) of SUBDIVISION
7(a)(6) by virtue of the reference in such CLAUSE (vi) to such CLAUSE (i)), then
the Notes and all other Obligations hereunder shall automatically and
immediately (without notice or other action by any Bank or the Agent) become due
and payable and all Commitments to make Loans and issue Letters of Credit
hereunder shall be terminated, and (ii) upon the happening of any other event of
default specified above which shall be continuing, the Agent may, with the
consent of the Required Banks, or shall, at the request of the Required Banks,
by written notice to the Borrower, declare the Notes and all other Obligations
hereunder to be due and payable, and all of the foregoing shall thereupon become
and be immediately due and payable, and (in the event of any such declaration)
the Agent shall terminate the Commitments. The Borrower expressly waives any
presentment, demand, protest or other notice of any kind.
▇. ▇▇▇▇▇' RIGHTS OF SET-OFF. Each Bank agrees that if it
shall, through the exercise of a right of banker's
lien, set-off or counterclaim against the Borrower,
including, but not limited to, a secured claim under
Section 506 of Title 11 of the United
-51-
States Code or other security or interest arising
from, or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency
or other similar law or otherwise, obtain payment in
respect of any of its Credit Extensions as a result
of which the unpaid portion of such Credit Extensions
shall be proportionately less than the unpaid portion
of the Credit Extensions of any other Bank (1) it
shall simultaneously purchase at par from such other
Bank a participation in the Credit Extensions of such
other Bank, so that the aggregate unpaid principal
amount of each Bank's Credit Extensions and its
participation in the Credit Extensions of such other
Bank shall be in the same proportion to the aggregate
unpaid principal amount of all Credit Extensions then
outstanding as the principal amount of its Credit
Extensions prior to such exercise of banker's lien,
set-off or counterclaim was to the principal amount
of all Credit Extensions outstanding prior to such
exercise of banker's lien, set-off or counterclaim
and (2) such other adjustment shall be made from time
to time as shall be equitable to ensure that each of
the Banks share such payment pro rata.
-52-
8. THE AGENT AND COLLATERAL
AGENT.
a. AUTHORIZATION BY BANKS. Each Bank authorizes Bank of
America National Trust and Savings Association to act
as Agent and Collateral Agent on its behalf to the
extent provided in this Agreement, the Pledge
Agreement and the Security Agreement, as the case may
be.
b. DUTIES OF AGENT AND COLLATERAL AGENT. The Agent
shall:
i. immediately after receiving notice from the Borrower
of the amount of any Loan and the date upon which the
same is to be made, notify each Bank of the amount of
its Loan and arrange with each Bank to make Federal
or other immediately available funds available at the
office of the Agent as set forth on Exhibit F in the
amount of such Loan on or before 12:00 noon, New York
time, on the date of such Loan, and after receiving
such funds, hold such funds hereunder;
ii. at the time of making each Credit Extension, review,
with the advice of counsel, the documents required by
PARAGRAPH 4 to be delivered in connection with such
Credit Extension;
iii. pay to the Borrower the amounts received from the
Banks if the Agent and its counsel determine that the
conditions set forth in PARAGRAPH 4 have been
satisfied, or promptly return to each Bank with
interest the funds collected from such Bank if the
Agent, with the advice of counsel, determines that
such conditions have not been satisfied;
iv. promptly after the making of the Initial Loans,
deliver to each Bank the Note evidencing its interest
in such Loans;
v. remit promptly to each Bank its share of each payment
made by the Borrower under the Notes or hereunder;
vi. perform such duties with respect to the Letters of
Credit in the manner, and at such times, as set forth
in SUBPARAGRAPH 2(e);
vii. promptly consult with the Banks concerning (a) all
requests from the Borrower for the consent or waiver
under the provisions of this Agreement and the other
Loan Documents as
-53-
to any act or omission to act, and (b) concerning any
event of default; and
viii. promptly give any notice or declaration hereunder to
the Borrower, and promptly send a copy of such notice
or declaration to each Bank. The Collateral Agent
agrees to perform its duties under the Pledge
Agreement and Security Agreement as set forth
therein. The duties and responsibilities of the Agent
and the Collateral Agent shall be limited to those
expressly set forth in this Agreement, the Pledge
Agreement and the Security Agreement, as the case may
be, and the Agent and the Collateral Agent shall not
be obliged to recognize any other agreement between
any or all of the parties hereto or thereto even
though reference to any such agreement may be made
herein or therein and whether or not the Agent or the
Collateral Agent has knowledge of any such agreement
nor shall the Agent or the Collateral Agent be bound
by any waiver, supplement or modification hereof or
thereto without its consent which affects its duties
hereunder or thereunder.
c. LIMITATION OF LIABILITY.
i. In the performance of its duties under this
Agreement, the Pledge Agreement or the Security
Agreement, as the case may be, the Agent and the
Collateral Agent shall exercise the same care that it
exercises in connection with the making and
administration of loans for its own account, but it
makes no representation or warranty in connection
with, and it assumes no responsibility for, the
solvency, financial condition or statements of the
Borrower, or the sufficiency or accuracy of the form,
execution, validity or genuineness of this Agreement,
the Notes, each other Loan Document or any other
document relating to the Credit Extensions, or of any
endorsement thereon, or for any lack of endorsement
thereof, or for any description therein if taken or
omitted by it in good faith or in the exercise of its
own best judgment. The Agent and the Collateral Agent
shall not be responsible or liable in any respect on
account of the identity, authority or rights of the
persons executing or delivering or purporting to
execute or deliver this Agreement, the Notes, each
other Loan Document, or any such other document. Each
of the Banks represents and warrants to the Agent and
the Collateral Agent that it has made its own
independent judgment with respect to entering into
this Agreement, the Notes and each other Loan
Document and
-54-
undertaking its obligations hereunder and thereunder
without reliance on the Agent, the Collateral Agent
or any other Bank, and will, independently and
without reliance on the Agent, the Collateral Agent
or any other Bank, continue to make its own credit
decisions in taking or not taking action under this
Agreement, the Notes and each other Loan Document.
ii. Neither the Agent, the Collateral Agent nor any of
their directors, officers or employees shall be
liable for any act taken or omitted under this
Agreement, the Pledge Agreement or the Security
Agreement, as the case may be, if taken or omitted by
it in good faith or in the exercise of its own best
judgment (except for its or such other person's own
gross negligence or willful misconduct). The Agent
and the Collateral Agent shall also be fully
protected in relying upon any written notice, demand,
certificate or document which the Agent or the
Collateral Agent, as the case may be, in good faith
believes to be genuine. The Agent and the Collateral
Agent may consult with legal counsel of its own
choice and shall be under no liability for any action
taken or suffered in good faith by it in reliance
upon the opinion of such counsel.
d. EXPENSES. The Banks agree that they will on demand
reimburse the Agent and the Collateral Agent, in its
capacity as such, for any and all costs, expenses and
disbursements which may be incurred or made by it in
connection with the Credit Extensions for which it is
not reimbursed at any time by or on behalf of the
Borrower. Any such costs, expenses and disbursements
shall be charged to each Bank PRO RATA in accordance
with its respective Percentage, PROVIDED that no Bank
shall be liable for the payment of any portion of any
costs, expenses or disbursements resulting solely
from the Agent's or Collateral Agent's gross
negligence or willful misconduct.
e. RESIGNATION OF AGENT. The Agent or the Collateral
Agent may, at any time resign by giving at least
thirty (30) days' advance written notice thereof to
the Borrower and each Bank by hand delivery or
certified mail. Upon receipt or delivery of such
notice, the Banks shall promptly appoint one of the
Banks to serve as the successor Agent or the
Collateral Agent, as the case may be, and, upon such
Bank's acceptance of said appointment as provided in
SUBPARAGRAPH 8(f), the resignation of the predecessor
Agent or the Collateral Agent, as the case may be,
shall become effective. If no successor agent has
-55-
accepted appointment as Agent by the date which is 30
days following a retiring Agent's notice of
resignation the retiring Agent's resignation shall
nevertheless thereupon become effective and the Banks
shall perform all of the duties of the Agent
hereunder. A pro-rated refund of any fees paid by
Borrower to Agent pursuant to SUBDIVISION 2(d)(1) of
both the Existing Credit Agreement and this Agreement
shall be paid to Borrower by the Agent upon the
Agent's resignation.
f. ACCEPTANCE OF APPOINTMENT.
i. Any successor Agent or Collateral Agent appointed as
provided in SUBPARAGRAPH 8(e) shall execute,
acknowledge and deliver to the Borrower and to its
predecessor Agent or Collateral Agent, as the case
may be, an instrument accepting such appointment
hereunder, and thereupon the resignation of the
predecessor Agent or Collateral Agent, as the case
may be, shall become effective and such successor
Agent or Collateral Agent, as the case may be,
without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement,
the Pledge Agreement or the Security Agreement, as
the case may be, with like effect as if originally
named as Agent or Collateral Agent, as the case may
be, herein or therein; but, nevertheless, on the
written request of the Borrower or of the successor
Agent or Collateral Agent, as the case may be, upon
payment of its charges then unpaid, the Agent or
Collateral Agent, as the case may be, ceasing to act
shall execute and deliver an instrument transferring
to such successor Agent or Collateral Agent, as the
case may be, all the rights and powers of the Agent
or Collateral Agent, as the case may be, so ceasing
to act. Upon request of any such successor Agent or
Collateral Agent, as the case may be, the Borrower
shall execute any and all instruments in writing for
more fully and certainly vesting in and confirming to
such successor Agent or Collateral Agent, as the case
may be, all such rights and powers.
ii. Upon acceptance of appointment by a successor Agent
or Collateral Agent, as the case may be, the Borrower
shall mail a notice of the succession of such Agent
or Collateral Agent, as the case may be, to all of
the Banks at their respective addresses as shown on
the then register of Notes maintained by the
Borrower. If the Borrower fails to mail such notice
within ten (10) days after acceptance of appointment
by the successor
-56-
Agent or Collateral Agent, as the case may be, the
successor Agent or Collateral Agent, as the case may
be, shall cause such notice to be mailed at the
expense of the Borrower.
G. CO-AGENTS. The Co-Agents shall have no duties, liability or
obligations in respect of their capacity as Co-Agents.
-57-
9. DEFINITIONS.
For all purposes of this Agreement, the following terms have the
meanings specified, unless the context otherwise requires:
"ACQUIRED COMPANY" shall mean (1) any Person 90% of the Voting
Stock of which is acquired by the Borrower and one or more Restricted
Subsidiaries and which is not irrevocably designated an Unrestricted
Subsidiary in accordance with the provisions set forth in the
definition of "Restricted Subsidiary", (2) any Person consolidated with
or merged into, the Borrower or any of its Restricted Subsidiaries, or
(3) any Person substantially all of the assets of which (or of a branch
or division of which) are acquired by the Borrower or any of its
Restricted Subsidiaries, PROVIDED that only the acquired branch or
division shall be deemed an Acquired Company in the case of the
acquisition of any branch or division.
"ADJUSTMENT DATE" shall mean each date which is 45 days after
the end of a fiscal quarter of the Borrower.
"AGREEMENT" shall mean this Second Amended and Restated Credit
Agreement dated as of April 30, 1997 among the Borrower, the Banks, the
Issuer and the Agent. This Agreement amends and restates the Existing
Agreement which itself amends and restates a First Amendment dated as
of July 17, 1991, (as further amended by a First Amendment dated May
20, 1994 and a Second Amendment dated as of August 11, 1995) which
itself amends and restates a Revolving Credit and Term Loan Agreement
dated July 20, 1988.
"AGGREGATE FUNDED DEBT" shall mean as of any date of
determination, the total of Aggregate Senior Funded Debt and Aggregate
Subordinated Funded Debt as of such date.
"AGGREGATE SENIOR FUNDED DEBT" shall mean as of any date of
determination, the aggregate principal amount of Senior Funded Debt of
the Borrower and its Restricted Subsidiaries as of such date,
determined in accordance with generally accepted accounting principles
on a consolidated basis after eliminating all intercompany
transactions, PROVIDED that Current Maturities shall not be included in
Aggregate Senior Funded Debt.
"AGGREGATE SUBORDINATED FUNDED DEBT" shall mean as of any date
of determination, the aggregate principal amount of Subordinated Funded
Debt of the Borrower and its Restricted Subsidiaries as of such date,
determined in accordance with generally accepted accounting principles
on a consolidated
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basis after eliminating all intercompany transactions, PROVIDED that
Current Maturities shall not be included in Aggregate Subordinated
Funded Debt.
"APPLICABLE MARGIN" shall mean the applicable percentage per
annum with respect to the Base Rate or Eurodollar Rate, as the case may
be, to be added in accordance with SUBDIVISION 2(b)(4).
"ATTORNEYS COSTS" shall mean all fees and disbursements of any
law firm or other external counsel and, without duplication, the
allocated cost of internal legal services and all reasonable
disbursements of internal counsel which in all respects, in the
aggregate, shall be reasonable.
"BAI" shall mean Bank of America Illinois in its individual
capacity.
"BAI LETTERS OF CREDIT" shall mean, collectively, the letters
of credit issued from time to time by BAI for the account of the
Borrower pursuant to the Letter of Credit Agreement. Anything in this
Agreement to the contrary notwithstanding, the Letters of Credit and
Letters of Credit Outstandings shall not include the BAI Letters of
Credit, except that the Existing BAI Letters of Credit shall be
included within the Letters of Credit and Letters of Credit
Outstandings for all purposes other than SUBPARAGRAPH 1(a)(2).
"BASE RATE" shall mean the sum of (a) the higher of (i) the
rate of interest publicly announced from time to time by the Agent as
its reference rate or (ii) the Federal Funds Rate plus 1/2% as in
effect from time to time, and (b) the Applicable Margin. The Agent's
reference rate is a rate set by the Agent based upon various factors
including the Agent's costs and desired return, general economic
conditions, and other factors, and is used as a reference point for
pricing some loans; however, the Agent may price loans at, above or
below such rate. Any change in such rate shall take effect on the day
specified in the public announcement of such change.
"BUSINESS DAY" shall mean any day not a Saturday, Sunday or
legal holiday in the States of Illinois, New Jersey, New York,
California, Michigan, Georgia, on which banks are open for business in
New York City, Chicago, Los Angeles, San Francisco, Detroit and
Atlanta, PROVIDED, HOWEVER, that when used in connection with a Loan at
the Eurodollar Rate, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in dollar deposits in the
London interbank market.
"CHANGE IN CONTROl" shall mean the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the
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Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of Voting Stock of the Borrower.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended.
"COLLATERAL AGENT" shall mean Bank of America National Trust
and Savings Association in its capacity as collateral agent under the
Pledge Agreement and Security Agreement, and includes each other Person
as shall have subsequently been appointed collateral agent pursuant to
the terms thereof.
"COMMITMENT" shall mean each Bank's commitment set forth on
EXHIBIT A-2, as such commitment may be permanently reduced or
terminated pursuant to SUBPARAGRAPH 1(d) hereof.
"CONSOLIDATED LEVERAGE RATIO" shall mean as at the end of any
fiscal quarter of the Borrower, the ratio of:
(a) Funded Debt
to
(b) the sum of:
(i) Funded Debt
PLUS
(ii) Net Worth.
"CREDIT EXTENSION" shall mean, as the context may require,
(a) the making of a Loan by a Bank; or
(b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any existing Letter of
Credit, by an Issuer.
"CURRENT MATURITIES" shall mean, as of any date of
determination, that portion of Senior Funded Debt or Subordinated
Funded Debt outstanding on such date which by its terms or by the terms
of any instrument or agreement relating thereto matures on demand or
within one year from such date (whether by way of sinking fund, other
required prepayment or final payment at maturity) and is not directly
or indirectly renewable, extendible or refundable, at the option of the
debtor under any agreement or firm
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commitment in effect on such date, to a date one year or more from such
date.
"DISBURSEMENT" shall mean any payment made under a Letter of
Credit by the Issuer thereof to the Beneficiary (or its assignee or
transferee) of such Letter of Credit.
"DISBURSEMENT DATE" shall mean the date designated for payment
upon presentment of any Letter of Credit to the applicable Issuer.
"EBIT" shall mean, for any measurement period, the sum for
such period of:
(a) Net Income;
(b) Net Interest Expense to the extent deducted
in determining such Net Income; and
(c) all taxes on or measured by income to the
extent deducted in determining such Net Income;
PROVIDED, HOWEVER, that for purposes of this definition, Net Income
shall be computed without giving effect to extraordinary losses or
extraordinary gains.
"EFFECTIVE DATE" shall mean the date on which each of the
conditions set forth in SUBPARAGRAPH 4(a) has been satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"EURODOLLAR RATE" shall mean an interest rate per annum
(rounded upward, if necessary, to the nearest 1/16 of 1%) equal to the
sum of:
(a) the interest rate per annum at which deposits in
United States dollars in an amount approximately equal to the
principal amount of the Loan for which the determination is
being made and with a maturity equal to the applicable
Interest Period are offered to the London office of the Agent
in immediately available funds in the London interbank market
at approximately 11:00 am., London time, two (2) Business Days
prior to the commencement of such Interest Period, plus
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(b) the Applicable Margin.
"EXISTING BAI LETTERS OF CREDIT" shall mean those letters of
credit identified and listed on Schedule 1 of the Existing Credit
Agreement.
"EXISTING BANKS" shall mean Bank of America Illinois; Chemical
Bank; NBD Bank; First Fidelity Bank, N.A.; Sun Trust Bank, Atlanta; The
Bank of Tokyo Trust Company; The Bank of New York; Bank of Scotland;
United Jersey Bank; NatWest Bank N.A.; and Bank of America National
Trust and Savings Association, or their successors or assigns.
"EXISTING CREDIT AGREEMENT" shall have the meaning set forth
in the first recital.
"EXCESS PURCHASE COSTS" shall mean, as of any date of
determination, (1) the sum of the purchase prices paid for or
attributed to the net assets of all Acquired Companies, minus (2) the
sum of the amounts at which such net assets are reflected in the
balance sheet of the Borrower as of such date, prepared in accordance
with generally accepted accounting principles or in the consolidated
balance sheet of the Borrower and its Restricted Subsidiaries as of
such date, prepared in accordance with generally accepted accounting
principles on a consolidated basis, after eliminating all intercompany
items, as the case may be.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board
(including any such successor, "H.15(519)") for such day opposite the
caption "Federal Funds (Effective)." If on any relevant day the
appropriate rate for such previous day is not yet published in
H.15(519), the rate for such day will be the arithmetic mean of the
rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected
by the Agent.
"FEE LETTER" shall mean the letter dated March 20, 1997
between the Borrower, BancAmerica Securities, Inc., the Agent and BAI.
"FINAL MATURITY DATE" shall mean November 14, 2000.
"FUNDED DEBT" shall mean, as of any date of determination, (i)
all Indebtedness in respect of borrowed money and (ii) all Indebtedness
with respect to Interest Rate Protection Agreements. Notwithstanding
the foregoing, in no case will Funded Debt include any amounts
representing
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either deferred income taxes or lease or installment purchase
obligations unless such lease or installment purchase obligations are
required to be capitalized under generally accepted accounting
principles.
"GUARANTEE" shall mean any obligation, contingent or
otherwise, of any Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person in any manner,
whether directly or indirectly, and including, without limitation, any
obligation of such other Person, direct or indirect, contingent or
otherwise, (1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any direct or indirect security
therefor, (2) to purchase property, securities, or services for the
purpose of assuring the owner of such Indebtedness of the payment of
such Indebtedness, (3) to maintain working capital, equity capital, or
other financial statement condition of such other Person so as to
enable such other Person to pay such Indebtedness or otherwise to
protect the owner thereof against loss in respect thereof, or (4)
entered into for the purpose of assuring in any manner the owner of
such Indebtedness of the payment of such Indebtedness or to protect
such owner against loss in respect thereof.
"INDEBTEDNESS" as applied to any Person shall mean, as of any
date of determination, all indebtedness, obligations and liabilities
which in accordance with generally accepted accounting principles would
be included in the liability side of a balance sheet of such Person as
at such date, including, without limitation (1) all amounts for
guarantees, endorsements (other than for collection or deposit in the
ordinary course of business) and other contingent obligations in
respect of, or to purchase or otherwise acquire or become liable upon,
indebtedness, obligations or liabilities of other Persons, (2) all
lease or installment purchase obligations of such Person which are
required to be capitalized under generally accepted accounting
principles and (3) all net obligations with respect to Interest Rate
Protection Agreements. A renewal or extension of any Indebtedness shall
be deemed to be an incurrence of liability in respect of such
Indebtedness as so renewed or extended.
"INITIAL LOANS" shall mean Loans evidenced by Notes signed and
dated the Effective Date.
"INTEREST COVERAGE RATIO" shall mean, for any Measurement
Period, the ratio of:
(a) EBIT
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TO
(b) Net Interest Expense.
"INTEREST PAYMENT DATE" shall mean (1) as to any Loan at the
Eurodollar Rate, the last day of an Interest Period, provided that, in
the case of any Loan at the Eurodollar Rate with an Interest Period in
excess of three months, each day within such Interest Period which
would be the last day of an Interest Period commencing on the same date
but having a duration of three months or any integral multiple of three
months shall also be an Interest Payment Date, and (2) as to any Loan
at the Base Rate, the first day of January, April, July and October,
or, if such day is not a Business Day, the next succeeding Business
Day.
"INTEREST PERIOD" shall mean, as to any Loan at the Eurodollar
Rate, the period commencing on the date of such Loan and ending on the
numerically corresponding day (or if there is no corresponding day, the
last day) in the calendar month that is 1, 2, 3, 6 or 12 months
thereafter, as the Borrower may elect, and thereafter, each period
commencing on the last day of the next preceding Interest Period for
such Loan at the Eurodollar Rate and ending on the numerically
corresponding day (or if there is no corresponding day, the last day)
in the calendar month that is 1, 2, 3, 6 or 12 months thereafter, as
the Borrower may elect, and PROVIDED that (a) if any Interest Period
would end on a day which shall not be a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next
preceding Business Day, (b) no Interest Period with respect to a Loan
shall end later than the Final Maturity Date.
"INTEREST RATE PROTECTION AGREEMENTS" shall mean any interest
rate swaps, caps, collars or similar arrangements entered into to hedge
interest rate risk (and not for speculative purposes).
"INVESTMENTS" shall mean to purchase or acquire the
obligations or stock of, or any other interest in, any Person.
"IRB FINANCING" shall mean any industrial development or
pollution control financing made pursuant to Section 103 of the
Internal Revenue Code of 1986, as amended, or any successor statute.
"ISSUER" shall mean Bank of America Illinois in its capacity
as issuer of the Letters of Credit. At the request of the Borrower,
another Bank
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acceptable to the Agent (which acceptance shall not be unreasonably
withheld) shall issue one or more Letters of Credit hereunder.
"▇▇▇▇▇ CORPORATION LITIGATION" shall mean litigation regarding
the purchase of certain assets from ▇▇▇▇▇ Corporation at allegedly less
than fair market value by a predecessor of the Borrower.
"LETTER OF CREDIT" shall mean one or more documentary or
standby letters of credit issued by Issuer pursuant to the terms hereof
(each a "LETTER OF CREDIT" and collectively the "LETTERS OF CREDIT").
"LETTER OF CREDIT AGREEMENT" shall mean the Amended and
Restated Letter of Credit Agreement, dated as of November 15, 1995, as
further amended, supplemented, restated or otherwise modified from time
to time.
"LETTER OF CREDIT OUTSTANDINGS" shall mean, on any date, an
amount equal to the sum (without duplication) of
(a) the then aggregate amount which is undrawn and
available under all Letters of Credit issued and outstanding
PLUS
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
"LEVEL I" shall have the meaning specified in SUBDIVISION
2(b)(4).
"LEVEL II" shall have the meaning specified in SUBDIVISION
2(b)(4).
"LEVEL III" shall have the meaning specified in SUBDIVISION
2(b)(4).
"LEVEL IV" shall have the meaning specified in SUBDIVISION
2(b)(4).
"LEVEL V" shall have the meaning specified in SUBDIVISION
2(b)(4).
"LEVEL VI" shall have the meaning specified in SUBDIVISION
2(e)(4).
"LEVERAGE RATIO CERTIFICATE" shall mean a certificate duly
executed by the president, or authorized responsible officer,
vice president or their designee, of the Borrower,
substantially in the form of EXHIBIT C (with such changes
thereto as may be agreed upon from time to time by the Agent
and the Borrower), and including therein, among other things,
calculations supporting the information contained therein.
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"LOAN" shall mean individually a loan, and collectively, the
loans made to the Borrower under SUBDIVISION 1(a)(1) of this Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Notes, the Letters of Credit, the Security Agreement, the Pledge
Agreement, and all Interest Rate Protection Agreements between the
Borrower and any Bank or affiliates of any Bank.
"MEASUREMENT PERIOD" shall mean any period of four consecutive
fiscal quarters of the Borrower and ending on the last day of a fiscal
quarter of the Borrower taken as one accounting period.
"MEMORANDUM" shall mean the memorandum, dated March 20, 1997,
from BancAmerica Securities, Inc. to each of the Banks.
"MULTIEMPLOYER PLAN" shall mean any multiemployer plan as
defined in Section 3(37) of ERISA.
"NET INCOME" for any Measurement Period shall mean the
aggregate, without duplication, of (1) the net income of the Borrower
and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with generally accepted accounting
principles, after eliminating all intercompany transactions, and after
eliminating portions of earnings properly attributable to minority
interests, if any, in capital stock of Restricted Subsidiaries, and (2)
the net income for the period in question of any Acquired Company
acquired after the beginning of such period, PROVIDED that the net
income specified in SUBDIVISION (2) of this definition shall be
determined on the same basis specified in SUBDIVISION (1).
"NET INTEREST EXPENSE" shall mean, for any Measurement Period:
(a) the aggregate amount of interest expense of the
Borrower and its Subsidiaries for such period, as determined
on a consolidated basis in accordance with GAAP
LESS
(b) the aggregate interest income of the Borrower and
its Subsidiaries, as determined in accordance with
GAAP.
"NET WORTH" shall mean, at any time, all amounts which, in
accordance with GAAP, would be included under shareholders' equity on a
consolidated balance sheet of Borrower and its Subsidiaries (excluding
foreign currency translation adjustments).
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"NOTES" shall mean the promissory notes of the Borrower
evidencing the obligation of the Borrower to repay the Loans.
"OBLIGATIONS" shall mean all obligations (monetary or
otherwise) of the Borrower arising under or in connection with this
Agreement, the Notes and each other Loan Document.
"PAYMENTS ON STOCK" shall mean the declaration or payment of
dividends on capital stock of the Borrower, purchases, redemptions,
retirements or other acquisitions of capital stock of the Borrower, or
distributions to shareholders of the Borrower, excluding, however, any
of the foregoing which are payable solely in capital stock of the
Borrower.
"PERCENTAGE" shall mean, relative to any Bank, the percentage
set forth opposite such Bank's name on EXHIBIT A-2 hereto, as such
percentage may be adjusted from time to time pursuant to SUBDIVISION
1(d)(4) or 11(h).
"PERMITTED BUYBACK" shall mean a repurchase or redemption of
the Borrower's Common Stock which (a) is pursuant to a Stock Purchase
Agreement, (b) occurs when no event of default under SUBPARAGRAPH 7(a)
hereof (or event which, after the giving of notice or lapse of time or
both, would constitute an event of default) has occurred and is
continuing or would result therefrom and (c) would not, when aggregated
with all Permitted Buybacks during the preceding twelve months, exceed
$1,000,000.
"PERSON" shall mean any corporation, partnership, joint
venture, government, association, natural person or other entity.
"PLAN" shall mean an employee benefit plan or other plan
maintained for employees of the Borrower or any of its Subsidiaries
which is covered by Title IV of ERISA.
"PLEDGE AGREEMENT" shall mean the Amended and Restated Pledge
Agreement executed and delivered from time to time pursuant to
SUBDIVISION 4(a)(4), dated as of November 15, 1995, as further amended,
supplemented, amended and restated or otherwise modified from time to
time.
"REIMBURSEMENT OBLIGATION" shall mean the obligation of the
Borrower under SUBDIVISION 2(e)(3) to reimburse the Issuer with respect
to each Disbursement (including interest thereon).
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"REPORTABLE EVENT" shall have the meaning assigned to that
term in section 4043(b) of ERISA, but shall include only those events
as to which the Pension Benefit Guaranty Corporation has not waived by
regulation the 30-day notice requirement.
"REQUIRED BANKS" shall mean the holders of at least 65% in
principal amount of the sum of (a) the unutilized portion under all
then existing Commitments, (b) the then aggregate outstanding principal
amount of all Loans and Letter of Credit Outstandings and (c) the
aggregate principal amount of the letters of credit authorized to be
issued pursuant to the Letter of Credit Agreement.
"RESTRICTED INVESTMENT" shall mean Investments in any Person
other than Investments covered by (1) through (10) of SUBPARAGRAPH
6(e), if the Borrower would be permitted to make such Investment
pursuant to and within the limitations specified in SUBPARAGRAPH 6(f).
"RESTRICTED SUBSIDIARY" shall mean any Subsidiary of the
Borrower at least 90% of the outstanding shares of Voting Stock of
which are owned, directly or indirectly, by the Borrower or by one or
more Restricted Subsidiaries of the Borrower or both, other than any
such other Subsidiary of the Borrower which has been irrevocably
designated as an Unrestricted Subsidiary by resolution of the Board of
Directors of the Borrower (a certified copy of which shall promptly be
delivered to the Agent), PROVIDED that no such designation shall be
made unless (a) at the time of such designation such Subsidiary does
not own any shares of Voting Stock or Indebtedness of any other
Restricted Subsidiary of the Borrower which is not simultaneously being
designated an Unrestricted Subsidiary of the Borrower or any shares of
Voting Stock or Indebtedness of the Borrower, and (b) immediately after
giving effect to such designation, no condition or event shall exist
which constitutes an event of default under PARAGRAPH 7 or which after
the giving of notice or the lapse of time or both would constitute such
an event of default.
"SALE AND LEASEBACK" shall mean any arrangement whereby the
Borrower or any Restricted Subsidiary shall sell or transfer directly
or indirectly, all or any substantial part of its fixed assets in
anticipation of the leaseback of such assets within one year.
"SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL" shall mean the
grid set forth on page 3 of EXHIBIT B.
"SECURITY AGREEMENt" shall mean the Amended and Restated
Security Agreement executed and delivered pursuant to SUBDIVISION
4(a)(5), dated as
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of November 15, 1995, as further amended, supplemented, amended and
restated or otherwise modified from time to time.
"SENIOR FUNDED DEBT" shall mean Funded Debt other than
Subordinated Funded Debt.
"SHORT-TERM BORROWINGS" shall mean all Indebtedness in respect
of borrowed money maturing on demand or within one year from the date
of the creation thereof and not directly or indirectly renewable or
extendable, at the option of the debtor, by its terms or by the terms
of any instrument or agreement relating thereto, to a date one year or
more from the date of the creation thereof.
"SIGNIFICANT RESTRICTED SUBSIDIARY" shall mean any Restricted
Subsidiary meeting any one of the following conditions: (1) the assets
of such Restricted Subsidiary, or the investments in and advances to
such Subsidiary by the Borrower and its other Restricted Subsidiaries,
exceed 15% of the aggregate assets (excluding the assets of such
Restricted Subsidiary) appearing on a consolidated balance sheet of the
Borrower and its Restricted Subsidiaries, or (2) the net sales and
service revenues of such Restricted Subsidiary for the fiscal year of
the Borrower most recently ended exceed 15% of the net sales and
service revenues (excluding those of such Restricted Subsidiary) shown
on the statement of consolidated net income for such fiscal year, or
(3) such Subsidiary has one or more Subsidiaries and together therewith
would, if considered in the aggregate, constitute a Significant
Restricted Subsidiary within the terms of SUBDIVISIONS (1) or (2) of
this definition.
"STATED AMOUNT" shall mean for any Letter of Credit on any
day, the face amount of such Letter of Credit on such day.
"STATED EXPIRY DATE" shall mean a date no later than the
earlier of (a) the one year anniversary of the date of the issuance or
extension of such Letter of Credit and (b) the Final Maturity Date.
"STOCK PURCHASE AGREEMENT" shall mean each of the Stock
Purchase Agreements, dated as of June 17, 1988, between the Borrower
and certain of its employees.
"STOCKHOLDERS' EQUITY" shall mean, as of any date of
determination, the aggregate of the preferred and common stock (but
excluding treasury stock and capital stock subscribed and unissued) and
retained earnings and paid-in capital (including the balance of the
current profit and loss account not transferred to retained earnings)
of the Borrower and its Restricted
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Subsidiaries as the same properly appears on a consolidated balance
sheet of the Borrower and its Restricted Subsidiaries as of such date
prepared in accordance with generally accepted accounting principles on
a consolidated basis, after eliminating all intercompany transactions
less Excess Purchase Costs associated with acquisitions made after the
date hereof.
"SUBORDINATED FUNDED DEBT" shall mean any unsecured Funded
Debt which (a) is created under or evidenced by an instrument
containing provisions for subordination of Funded Debt to the Notes
substantially the same as those set forth in EXHIBIT E and (b) is
otherwise in form and substance satisfactory to the Required Banks.
"SUBSIDIARY" as applied to any Person (hereinafter called the
parent) shall mean any other Person the majority of the Voting Stock or
other ownership interests of which at the time is owned, directly or
indirectly, by the parent or by one or more of its Subsidiaries or
both.
"UNRESTRICTED SUBSIDIARY" shall mean any Subsidiary of the
Borrower which is not at the time a Restricted Subsidiary of the
Borrower.
"VOTING STOCK" shall mean, as to the shares of stock of a
particular corporation, all shares of stock or corresponding securities
of such corporation, at the time outstanding and having voting power
for the election of directors or persons performing similar functions
either at all times or so long as no senior class of securities has
such voting power because of default in dividends or because of the
existence of some other default, but shall not include any shares of
stock or corresponding securities having voting power only upon the
occurrence of some contingency.
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10. AMENDMENTS AND WAIVERS.
a. No provision or term of this Agreement, any Note, any other
Loan Document or the Letter of Credit Agreement may be
changed, waived, discharged or terminated orally or in
writing, except that any term of this Agreement, the Notes,
the other Loan Documents and the Letter of Credit Agreement
may be amended and the observance of any such term may be
waived (either generally or in a particular instance and
either retroactively or prospectively) with (but only with)
the written consent of the Required Banks; PROVIDED that no
such amendment or waiver shall, without the written consent
of all of the Banks, (1) change the amount or time of any
required payment or prepayment of any Note or any part
thereof, or of interest thereon, (2) reduce any fees
described in SUBPARAGRAPH 2(e), (3) increase the amount of
the Commitments or change any Bank's participation in the
Commitments, (4) change the definition of "Required Banks",
(5) substitute, release, modify or exchange all or
substantially all of the collateral (it being understood
that no consent of the Banks is required in respect of any
release of collateral in connection with any sale of assets
pursuant to SUBPARAGRAPH 6(c)), (6) waive any of the
conditions specified in SUBPARAGRAPH 4(a) or 4(a) or (7)
modify the requirement in SUBPARAGRAPH 11(h) that the
Borrower obtain the consent of all the Banks to assign or
transfer any of its rights or obligations under this
Agreement; PROVIDED, FURTHER, that no such amendment or
waiver shall, without the written consent of the holders of
at least 69.5% in principal amount of the sum of CLAUSES
(a), (b) and (c) of the definition of Required Banks
substitute, release, modify or exchange less than
substantially all of the collateral (it being understood
that no consent of the Banks is required in respect of any
release of collateral in connection with any sale of assets
pursuant to SUBPARAGRAPH 6(c)).
b. No failure on the part of any Bank or the Agent to exercise,
and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial
exercise by any Bank or the Agent of any right hereunder
preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by
law, and nothing in this Agreement shall be deemed any
waiver, restriction or prohibition of any Bank's right of
banker's lien or set-off; but on the contrary, the Borrower
specifically agrees that each Bank shall have such right and
that the same shall be exercisable whether or not the Notes,
Letter of Credit Outstandings and other Obligations
hereunder be then technically due, past due or delinquent.
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11. MISCELLANEOUS.
a. COSTS AND EXPENSES. The Borrower shall, whether or
not the transactions contemplated hereby shall be
consummated:
i. pay or reimburse on demand for all reasonable costs
and expenses incurred by the Agent, in connection
with the development, preparation, delivery,
administration and execution of, and any amendment,
supplement, waiver or modification to (in each case,
whether or not consummated), this Agreement, any
other Loan Documents and any other documents prepared
in connection herewith or therewith, and the
consummation of the transactions contemplated hereby
and thereby, including the reasonable Attorney Costs
incurred by the Agent with respect thereto;
ii. pay or reimburse each Bank and the Agent on demand
for all reasonable costs and expenses incurred by
them in connection with the enforcement, attempted
enforcement, or preservation of any rights or
remedies (including in connection with any "workout"
or restructuring regarding the Loans, and including
in any insolvency proceeding) under this Agreement,
any other Loan Documents, and any such other
documents, including Attorney Costs or the cost of
any consultants incurred by the Agent and any Bank;
and
iii. pay or reimburse the Agent on demand for all
appraisals (including the allocated cost of internal
appraisal services), audits, environmental
inspections and reviews (including the allocated cost
of such internal services), search and filing costs,
fees and expenses, incurred or sustained by the Agent
in connection with the matters referred to under
PARAGRAPHS (a) and (b) of this SUBPARAGRAPH 11(a).
b. INDEMNITY. Whether or not the transactions
contemplated hereby shall be consummated, the
Borrower shall pay, indemnify, and hold harmless each
Bank, the Issuer, the Agent and each of their
respective officers, directors, employees, counsel,
agents and attorneys-in-fact (each, an "INDEMNIFIED
PERSON") from and against any and all liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or
disbursements (including Attorney Costs) of any kind
or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration
of this
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Agreement and any other Loan Document, or the
transactions contemplated hereby and thereby, and
with respect to any investigation, litigation or
proceeding (including any insolvency proceeding)
related to this Agreement or the Loan Documents or
the Loans or the Letters of Credit, or the use of the
proceeds thereof, whether or not any indemnified
person is a party thereto (all the foregoing,
collectively, the "INDEMNIFIED LIABILITIES");
PROVIDED, HOWEVER, that the Borrower shall have no
obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the
gross negligence or willful misconduct of such
Indemnified Person as the same is determined by a
final judgment of a court of competent jurisdiction.
The obligations in this SUBPARAGRAPH (b) shall
survive payment of all other Obligations.
c. NOTICES. Except as otherwise provided in this
Agreement, notices and other communications under
this Agreement shall be in writing and shall be
delivered, or mailed by first-class mail, postage
prepaid, addressed, (1) if to any Bank, at the
address set forth on EXHIBIT G, to the attention of
the officer designated on such EXHIBIT G, or at such
other address, or to the attention of such other
officer, as shall have been furnished to the Borrower
in writing, (2) if to the Borrower, at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, to
the attention of Treasurer, or at such other address,
or to the attention of such other officer, as the
Borrower shall have furnished to each Bank in
writing.
d. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Borrower made
in SECTION 3 hereof shall survive the termination of
this Agreement and the payment of the Credit
Extensions and all other Obligations payable
hereunder.
e. CONSTRUCTION. This Agreement, the Notes and the other
Loan Documents shall be deemed to be a contract made
under the laws of the State of New York and shall be
governed by and be construed in accordance with the
laws of such State.
f. JURISDICTION. The Borrower irrevocably agrees that
any legal action or proceeding against it arising out
of or in connection with this Agreement, the Notes
and the other Loan Documents or for recognition or
enforcement of any judgment rendered in any such
action or proceeding may be brought in any Federal or
-▇▇-
▇▇▇▇▇ ▇▇▇▇▇ sitting in the State and County of New
York, and by execution and delivery of this
Agreement, the Borrower hereby irrevocably accepts
and submits to the jurisdiction of each of the
aforesaid courts IN PERSONAM, generally and
unconditionally with respect to any such action or
proceedings for itself and in respect of its
property, assets, and revenues. The Borrower hereby
also irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or
hereafter have that such action or proceeding brought
in such court has been brought in an inconvenient
forum. The Borrower further irrevocably consents to
service of process out of said courts by mailing a
copy thereof, by registered or certified mail,
postage prepaid, and irrevocably waives, to the
fullest extent permitted by law, all claim of error
by reason of such service, in any legal action or
proceeding brought in accordance herewith. The
Borrower irrevocably waives, in any legal action or
proceeding in any jurisdiction (whether for any
injunction, specific performance, damages, or
otherwise), any right or claim of immunity of any
kind with respect to itself or its assets, including
without limitation from attachment or execution of
judgment, and the Borrower irrevocably agrees that it
and its assets are and shall be subject to legal
action or proceeding, attachment, or execution in
respect to its obligations under this Agreement, the
Notes and the other Loan Documents.
g. HEADINGS. Headings in this Agreement are for
convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
h. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of, the
Borrower, the Banks and the Agent, and their
respective successors and permitted assigns, and no
other Person shall acquire or have any right under or
by virtue of this Agreement. The Borrower may not
assign or transfer any of its rights or obligations
hereunder without the consent of all the Banks and,
subject to the other terms of this SUBPARAGRAPH
11(h), no bank may assign or transfer its rights
here under without the consent of the Borrower,
PROVIDED that any Bank, without the consent of the
Borrower, the Agent or any other Bank, may grant
participations to one or more banks or other entities
in, or to all of, any Loan or Loans, any Note or any
Letter of Credit, and to the extent of any such
participation (unless otherwise stated therein) the
participant shall not have any rights, benefits or
obligations
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hereunder, any Note or any Letter of Credit other
than, to the extent stated therein, the right to
consent to any (a) changes in the scheduled payments
on the Notes or Letters of Credit, (b) reductions in
interest rates or fees, (c) changes in the collateral
provided for hereunder or (d) changes in the
definition of "REQUIRED BANKS"; PROVIDED, HOWEVER
that notwithstanding any such grant of participation,
the Agent and the Borrower shall, unless both the
Agent and the Borrower agree otherwise, be entitled
to deem and treat the original Banks parties hereto
for all purposes of this Agreement, the Notes and the
other Loan Documents as the owners of the Loans and
participants in the Letter of Credit and all amounts
payable hereunder shall be calculated as if such
participation or participations had not been granted.
Notwithstanding any of the other terms of this
SUBPARAGRAPH 11(h), (i) any Bank may assign all (but
not less than all) of its rights and obligations
hereunder without the consent of the Borrower to a
commercial banking institution organized under the
laws of the United States (or State thereof) or a
United States branch or agency of a commercial
banking institution and having a combined capital and
surplus of at least $500,000,000 and (ii) any Bank
may pledge all or any part of its rights hereunder to
a Federal Reserve Bank without the consent of the
Borrower.
i. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an
original and all of which together shall constitute
one and the same instrument.
j. WAIVER OF JURY TRIAL. THE AGENT, BANKS AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS
OF THE AGENT, THE BANKS OR THE BORROWER. THE
BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
-75-
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER
LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND
THE BANKS ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER LOAN DOCUMENT.
k. CROSS-REFERENCES. Each reference in any Loan Document
or financing statement to the Existing Credit
Agreement is also deemed to be a reference to this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
THE GENLYTE GROUP INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President - CFO
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS AGENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA ILLINOIS, AS A BANK
AND ISSUER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
THE BANK OF NEW YORK, AS A BANK AND
CO-AGENT
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
Title:
FLEET BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
SUN TRUST BANK, ATLANTA, AS A BANK
AND CO-AGENT
By: /s/
Title:
By: /s/
Title:
SUMMIT BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
EXHIBIT A-2
LIST OF BANKS
Commitment Percentage
Amount Share
------------------- -------------------
Bank of America Illinois $ 15,000,000 15.000%
Sun Trust Bank, Atlanta $ 12,500,000 12.500%
The Bank of New York $ 12,500,000 12.500%
The Chase Manhattan Bank $ 10,000,000 10.000%
First Chicago NBD $ 10,000,000 10.000%
First Union National Bank $ 10,000,000 10.000%
Summit Bank $ 10,000,000 10.000%
Bank of Tokyo-Mitsubishi Trust $ 10,000,000 10.000%
Company
Fleet Bank $ 10,000,000 10.000%
--------------- ------
$ 100,000,000 100.00%
===============
EXHIBIT B
FORM OF NOTE
, New Jersey
[U.S.$ ]
THE GENLYTE GROUP INCORPORATED, a Delaware corporation (the
"BORROWER"), for value received, hereby promises to pay to the order of [
] (the "BANK") at the office of BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent (the "AGENT"), the lesser of the principal sum of [$
] or the aggregate unpaid principal amount of all Loans made by the Bank to the
Borrower pursuant to the Amended and Restated Credit Agreement, dated as of
November 15, 1995 (the "AGREEMENT"), among the Borrower, the Banks named therein
and the Agent thereunder, such amount to be evidenced by endorsement thereof by
the holder on the Schedule of Loans and Payments of Principal on the reverse
side of this Note (subject to the proviso set forth below) and to be paid in
immediately available funds on November 14, 2000 and as otherwise provided in
the Agreement; and the Borrower hereby promises to pay interest on the unpaid
principal amount of all Loans from time to time outstanding from the date hereof
until stated maturity or earlier payment, in like funds, at such office, at a
rate or rates per annum and at such times as are provided by the Agreement.
Each Loan and each prepayment or payment made on account of the
principal hereof shall be endorsed by the holder on the Schedule of Loans and
Payments of Principal on the reverse side of this Note, PROVIDED, HOWEVER, that
the failure of the Bank or the Agent to set forth such principal payments,
prepayments and other payments on such schedule shall not in any manner affect
the obligation of the Borrower to repay the Loans made by the Bank in accordance
with the terms of this Note. This Note may be prepaid in whole or in part at the
option of the Borrower and is subject to mandatory prepayment in accordance with
the provisions of the Agreement.
This Note is one of the Notes referred to in, and the holder hereof
and the Borrower are entitled to the benefits of, the Agreement. Upon occurrence
of an event of default specified in the Agreement, the principal hereof and
accrued interest hereon may be declared to be or may become forthwith due and
payable as provided in the Agreement.
B-1
This Note shall be deemed to be a contract made under the laws of the
State of New York and shall be governed by and construed in accordance with the
laws of such State.
THE GENLYTE GROUP INCORPORATED
By:
Title:
B-2
SCHEDULE OF
LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Principal Unpaid
Amount of Paid of Principal Certified
Date Loan Prepaid Balance by