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EXHIBIT 5.4
BRIDGE LOAN AGREEMENT
BY AND AMONG
PPM AMERICA SPECIAL INVESTMENTS FUND, L.P.,
AS AGENT AND LENDER,
THE OTHER LENDERS PARTY HERETO
AND
BUCYRUS INTERNATIONAL, INC., AS BORROWER
AND
BUCYRUS (AUSTRALIA) PROPRIETARY LTD.,
AND
BUCYRUS CANADA LIMITED, AS SUBSIDIARY BORROWERS
DATED: AUGUST 26, 1997
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BRIDGE LOAN AGREEMENT
This Bridge Loan Agreement dated August 26, 1997 is entered into by and
between Bucyrus International, Inc., a Delaware corporation (the "Company" or
"Borrower"); Bucyrus (Australia) Proprietary Ltd., an Australian corporation
("Bucyrus Australia"); Bucyrus Canada Limited, a Canadian corporation ("Bucyrus
Canada", and together with Bucyrus Australia, individually, a "Subsidiary
Borrower" or "Borrower" and, collectively, the "Subsidiary Borrowers"); each of
the lenders that is a signatory hereto identified under the caption "LENDERS" on
the signature pages hereof or shall become a "Lender" hereunder (individually a
"Lender" and, collectively, the "Lenders"); and PPM America Special Investments
Fund, L.P., a Delaware limited partnership, as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Company and the Subsidiary Borrowers have entered into an
Asset Purchase Agreement dated as of July 21, 1997 (as the same may be modified
and supplemented and in effect from time to time, the "Asset Purchase
Agreement") by and among Global Industrial Technologies, Inc., a Delaware
corporation ("Global"), and certain subsidiaries of Global, pursuant to which
the Company and the Subsidiary Borrowers have agreed to purchase and assume, and
the Sellers (as defined in the Purchase Agreement) have agreed to sell, certain
assets and liabilities of the Sellers (as so defined) (the "Acquisition");
WHEREAS, in connection with the foregoing, the Company and the Subsidiary
Borrowers have requested that the Lenders make bridge loans to the Company and
the Subsidiary Borrowers in an aggregate principal amount not exceeding
$45,000,000 to provide the required financing for the Acquisition including the
fees, costs and expenses associated with such Acquisition; and
WHEREAS, the Lenders are willing to make such loans on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
All terms used herein which are defined in Article 1 or Article 9 of the
Uniform Commercial Code shall have the meanings given therein unless otherwise
defined in this Agreement. All references to the plural herein shall also mean
the singular and to the singular shall also mean the plural. All references to
Borrower (as hereinafter defined) and Lender pursuant to the definitions set
forth in the recitals hereto, or to any other person herein, shall include their
respective successors and assigns. The words "hereof", "herein", "hereunder",
"this Agreement" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not any particular provision of this
Agreement and as this Agreement now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced. An Event of
Default shall exist or continue or be continuing until such Event of Default is
cured within the cure period permitted hereunder for such cure or is waived in
accordance with Section 11.3. Any accounting term used herein unless otherwise
defined in this Agreement shall have the meanings customarily given to such term
in accordance with GAAP (as hereinafter defined). For purposes of this
Agreement, the following terms shall have the respective meanings given to them
below:
"Acceleration Date" shall have the meaning assigned thereto in Section 3.3.
"Acquisition" shall have the meaning assigned thereto in the recitals
hereof.
"Adjusted Eurodollar Rate" shall mean, with respect to each Interest Period
for any Eurodollar Rate Loan, the rate per annum (rounded upwards, if necessary,
to the next one-sixteenth (1/16) of one (1%) percent) determined by dividing (a)
the Eurodollar Rate for such Interest Period by (b) a percentage equal to: (i)
one (1) minus (ii) the Reserve Percentage. For purposes hereof, "Reserve
Percentage" shall mean the
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reserve percentage, expressed as a decimal, prescribed by any United States or
foreign banking authority for determining the reserve requirement which is or
would be applicable to deposits of United States dollars in a non-United States
or an international banking office of Reference Bank used to fund a Eurodollar
Rate Loan or any Eurodollar Rate Loan made with the proceeds of such deposit,
whether or not the Reference Bank actually holds or has made any such deposits
or loans. The Adjusted Eurodollar Rate shall be adjusted on and as of the
effective day of any change in the Reserve Percentage.
"Applicable Lending Office" shall mean, for each Lender and for either
Eurodollar Rate Loans or Prime Rate Loans, the "Lending Office" of such Lender
(or of an affiliate of such Lender) designated for such Bridge Loan on the
signature pages hereof or such other office of such Lender (or of an affiliate
of such Lender) as such Lender may from time to time specify to the Agent and
the Borrowers as the office by which its Eurodollar Rate Loans or Prime Rate
Loans are to be made and maintained.
"AIP Acquisition" shall mean the purchase of at least 51% of the capital
stock of the Company by American Industrial Partners or an affiliated entity or
any other competing offer to acquire the capital stock of the Company accepted
by the Company.
"Asset Purchase Agreement" shall have the meaning assigned thereto in the
recitals hereof.
"BankOne Credit Agreement" shall mean that certain Credit Agreement dated
as of December 14, 1994 between Bank One, Milwaukee, National Association and
the Company, as in effect on the date hereof.
"Borrowers" shall mean collectively, the Company and the Subsidiary
Borrowers.
"Bridge Loan Commitment" means (a) as to any Lender, the commitment of such
Lender to make Bridge Loans as set forth on the signature page of this Agreement
opposite such Lender's signature and (b) as to all Lenders, the aggregate
commitment of all Lenders to make Bridge Loans.
"Bridge Loans" shall mean the loans made by the Lenders to the Borrowers as
provided for in Section 2.1 hereof.
"Bridge Notes" shall mean the notes evidencing the Bridge Loans pursuant to
Section 2.1 hereof.
"Business Day" shall mean (a) for the Prime Rate Loans, any day other than
a Saturday, Sunday, or other day on which commercial banks are authorized or
required to close under the laws of the State of New York or the State of
Illinois, and a day on which the Reference Bank and the Lenders are open for the
transaction of business, and (b) for all Eurodollar Rate Loans, any such day as
described in (a) above in this definition of Business Day, excluding any day on
which banks are closed for dealings in dollar deposits in the London interbank
market or other applicable Eurodollar Rate market.
"Capital Expenditures" shall mean, for any period, expenditures (including,
without limitation, the aggregate amount of Capital Lease Obligations incurred
during such period) made by the Company or any of its Consolidated Subsidiaries
to acquire or construct fixed assets, plant and equipment (including renewals,
improvements and replacements, but excluding repairs) during such period
computed in accordance with GAAP.
"Capital Lease Obligations" shall mean, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Change of Control" shall mean any transaction or event as a result of
which any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) is or becomes the
beneficial owner, directly or indirectly, of more than 50% of the issued and
outstanding shares of the capital stock of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as the same now exists
or may from time to time hereafter be amended, modified, recodified or
supplemented, together with all rules, regulations and interpretations
thereunder or related thereto.
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"Consolidated Subsidiary" shall mean, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP. Notwithstanding
the foregoing, for purposes of this Agreement, with respect to the Company, each
Subsidiary Borrower shall be deemed to be a Consolidated Subsidiary of the
Company.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Default" shall mean an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Effective Date" shall mean the date upon which all the conditions
precedent in Section 5 hereof are satisfied to each Lender's satisfaction or
waived by the Lenders and the Bridge Loans are made hereunder.
"Environmental Laws" shall mean all federal, state, district, local and
foreign laws, rules, regulations, ordinances, and consent decrees relating to
health, safety, hazardous substances, pollution and environmental matters, as
now or at any time hereafter in effect, applicable to Borrower's business and
facilities (whether or not owned by it), including laws relating to emissions,
discharges, releases or threatened releases of pollutants, contamination,
chemicals, or hazardous, toxic or dangerous substances, materials or wastes into
the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals, or
hazardous, toxic or dangerous substances, materials or wastes.
"ERISA" shall mean the United States Employee Retirement Income Security
Act of 1974, as the same now exists or may hereafter from time to time be
amended, modified, recodified or supplemented, together with all rules,
regulations and interpretations thereunder or related thereto.
"ERISA Affiliate" shall mean any person required to be aggregated with
Borrowers or any of its subsidiaries under Sections 414(b), 414(c), 414(m) or
414(o) of the Code.
"Eurodollar Default Rate" shall mean the rate of nine (9%) percent per
annum in excess of the Adjusted Eurodollar Rate.
"Eurodollar Rate Loans" shall mean any Bridge Loan or portion thereof on
which interest is payable based on the Adjusted Eurodollar Rate in accordance
with the terms hereof.
"Eurodollar Rate" shall mean with respect to the Interest Period for a
Eurodollar Rate Loan, the interest rate per annum equal to the arithmetic
average of the rates of interest per annum (rounded upwards, if necessary, to
the next one-sixteenth (1/16) of one (1%) percent) at which Reference Bank is
offered deposits of United States dollars in the London interbank market (or
other Eurodollar Rate market selected by Borrowers and approved by Lender) on or
about 9:00 a.m. (New York time) two (2) Business Days prior to the commencement
of such Interest Period in amounts substantially equal to the principal amount
of the Eurodollar Rate Loans requested by and available to Borrowers in
accordance with this Agreement, with a maturity of comparable duration to the
Interest Period.
"Event of Default" shall mean the occurrence or existence of any event or
condition described in Section 10.1 hereof.
"Fee Letter" shall mean the letter dated the date hereof between the Fund,
the Company and the Subsidiary Borrowers, as the same may be modified and
supplemented and in effect from time to time.
"Financing Agreements" shall mean, collectively, this Agreement, the Bridge
Notes, the Fee Letter, all guarantees and other agreements, documents and
instruments now or at any time hereafter executed and/or delivered by any
Borrower or any Obligor in connection with this Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced.
"Fund" shall mean PPM America Special Investments Fund, L.P., a Delaware
limited partnership.
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"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect from time to time as set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Boards which are applicable to the circumstances
as of the date of determination consistently applied.
"Global" shall have the meaning assigned thereto in the recitals hereof.
"Guarantor" shall mean each of the Company's subsidiaries who have executed
a Guarantee and any other Person who may hereafter guarantee payment or
performance of the whole or any part of the Obligations.
"Guaranty Agreements" shall mean, individually and collectively, the
Guarantee, dated of even date herewith, by each Guarantor in favor of Lenders,
as the same may be amended, modified, or supplemented.
"Interest Period" shall mean for any Eurodollar Rate Loan, a period of
approximately 30 days duration, the exact duration to be determined in
accordance with the customary practice in the applicable Eurodollar Rate market.
"Interest Rate" shall mean, as to Eurodollar Rate Loans, a rate of five
(5%) percent per annum in excess of the Adjusted Eurodollar Rate (based on the
Eurodollar Rate applicable for the Interest Period) and as to Prime Rate Loans,
a rate of two and one-half (2 1/2%) percent per annum in excess of the Prime
Rate; provided, that, the Interest Rate shall mean the Eurodollar Default Rate
as to Eurodollar Rate Loans and the Prime Default Rate as to Prime Rate Loans,
without notice, for the period on and after the date of termination of this
Agreement, or the date of the occurrence of any Default (which cannot be cured
within the cure period before it becomes an Event of Default), or Event of
Default, and for so long as such Default or Event of Default is continuing as
determined by the Majority Lenders and until such time as all Obligations are
indefeasibly paid in full (notwithstanding entry of any judgment against any
Borrower).
"Majority Lenders" shall mean Lenders holding at least 51% of the aggregate
outstanding principal amount of the Bridge Loans or, if the Bridge Loans shall
not have been made, at least 51% of the Bridge Loan Commitments.
"▇▇▇▇▇▇ Assets" shall mean the fixed assets, including equipment, furniture
and fixtures, acquired pursuant to the Purchase Agreements.
"Maturity Date" shall mean the earlier to occur of (a) the date seven days
from the date that the Senior Note Offering shall be consummated and (b) the
date one hundred eighty days from the Effective Date (provided that, if such day
is not a U.S. Business Day then such date shall be the immediately preceding
U.S. Business Day).
"Obligations" shall mean the Bridge Loans and all other obligations,
liabilities and indebtedness of every kind, nature and description owing by any
Borrower to the Agent, or any Lender and/or any of their respective affiliates,
including principal, interest, charges, fees, costs and expenses, however
evidenced, whether as principal, surety, endorser, guarantor or otherwise,
whether arising under this Agreement or otherwise, whether now existing or
hereafter arising, whether arising before, during or after the initial or any
renewal term of this Agreement or after the commencement of any case with
respect to any Borrower under the United States Bankruptcy Code or any similar
statute (including, without limitation, the payment of interest and other
amounts which would accrue and become due but for the commencement of such
case), whether direct or indirect, absolute or contingent, joint or several, due
or not due, primary or secondary, liquidated or unliquidated, secured or
unsecured, and however acquired by any Lender or the Agent.
"Obligor" shall mean any guarantor, endorser, acceptor, surety or other
person liable on or with respect to the Obligations, other than any Borrower.
"Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation which
elects subchapter S status under the Internal Revenue Code of
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1986, as amended), business trust, unincorporated association, joint stock
corporation, trust, joint venture or other entity or any government or any
agency or instrumentality or political subdivision thereof.
"Prime Default Rate" shall mean the rate of six and one-half (6 1/2%)
percent per annum in excess of the Prime Rate.
"Prime Rate" shall mean the highest prime or equivalent rate of interest
(expressed as an annual rate) publicly announced by The Chase Manhattan Bank,
N.A. or Bank of America National Trust and Savings Association from time to time
as its "prime rate", each change in such rate to take effect on the date of
effective change of such prime rate.
"Prime Rate Loans" shall mean any Bridge Loan or portion thereof on which
interest is payable based on the Prime Rate in accordance with the terms hereof.
"Project Financing" means indebtedness of the Borrowers incurred to pay the
costs associated with the manufacture of mining machinery or other products
pursuant to a binding purchase contract, which Indebtedness is secured by the
inventory being financed and the related accounts and which has a maturity date
not later than the date of the final payment by the customer under the purchase
contract.
"Purchase Agreements" shall mean, individually and collectively, the Asset
Purchase Agreement, together with bills of sale, quitclaim deeds, assignment and
assumption agreements and such other instruments of transfer as are referred to
therein and all side letters with respect thereto, and all agreements, documents
and instruments executed and/or delivered in connection therewith, as all of the
foregoing now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced; provided, that, the term "Purchase
Agreements" as used herein shall not include any of the "Financing Agreements"
as such term is defined herein.
"Purchased Assets" shall mean all of the assets and properties acquired or
to be acquired by the Borrowers from the Sellers pursuant to the Purchase
Agreements.
"Reference Bank" shall mean Bank of America National Trust and Savings
Association, or such other bank as the Majority Lenders may from time to time
designate.
"Sellers" shall have the meaning assigned thereto in the Asset Purchase
Agreement.
"Senior Notes Offering" shall mean the issuance by the Company of an
aggregate principal amount of at least $100,000,000 of senior notes as
contemplated by that certain Offering Memorandum dated July, 1997.
"U.S. Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks are authorized or required to close under
the laws of the State of New York or the State of Illinois and a day on which
the Reference Bank and the Lenders are open for the transaction of business.
SECTION 2. CREDIT FACILITIES
2.1 Bridge Loans.
(a) Each Lender severally agrees, on the terms and conditions of this
Agreement, to make a bridge loan to each Borrower in the amount set forth
under such Lender's name on Schedule 2.1 hereto in Dollars on the Effective
Date (provided that the same shall occur no later than August 31, 1997) in
an aggregate principal amount with respect to all Bridge Loans made by such
Lender to the Borrowers up to but not exceeding the Bridge Loan Commitment
of such Lender. Each Bridge Loan made to each Borrower by each Lender shall
be evidenced by a Bridge Note, substantially in the form of Exhibit A
hereto, duly executed and delivered by Borrowers concurrently herewith and
(ii) repaid, together with interest and other amounts, in accordance with
this Agreement, the Bridge Notes and the other Financing Agreements.
(b) Any portion of the Bridge Loan Commitments not used on the
Effective Date shall be automatically terminated. The Bridge Loan
Commitments once terminated may not be reinstated.
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(c) Each Borrower hereby promises to pay to the Agent for account of
each Lender the entire outstanding principal amount of such Lender's Bridge
Loan to such Borrower, and each Bridge Loan shall mature, on the Maturity
Date.
(d) The Borrowers may prepay the outstanding principal balance of the
Bridge Loans, in whole or in part, at any time, from time to time, without
premium or penalty (except as otherwise provided in Section 4.4 hereof),
upon at least five (5) Business Days prior written notice to the Agent. All
voluntary prepayments of the principal of the Bridge Loans shall be
accompanied by the payment of all accrued but unpaid interest to the date
of prepayment and, in the event that any such prepayment shall be made on a
day other than the last day of the applicable Interest Period for any
Bridge Loan that is a Eurodollar Rate Loan, any amounts payable by the
Borrowers pursuant to Section 4.4(b) hereof.
2.2 Mandatory Prepayments.
(a) If any Borrower sells, transfers, leases or otherwise disposes of
any of its properties, business or assets (collectively, the "Assets"),
including any Assets permitted to be sold pursuant to Section 9.5 in excess
of $1,000,000 in the aggregate, other than sales of Assets in the ordinary
course of business, such Borrower shall pay to the Agent for the account of
the Lenders, unless otherwise agreed by the Majority Lenders, as and when
received by such Borrower as a mandatory prepayment of the Bridge Loans,
the proceeds received by such Borrower from such sale, net of any payments
made by Borrower on any indebtedness secured by a lien on such Assets, and
Borrower's closing costs associated with such sale, to be applied as
follows: (A) provided that no Event of Default has occurred and is
continuing, one hundred percent (100%) of such proceeds shall be applied to
the principal of such Borrower's Bridge Loans, together with unpaid
interest accrued on such amount to the date of such payment, until payment
thereof in full, or (B) provided an Event of Default has occurred and is
continuing, one hundred percent (100%) of such proceeds shall be applied to
the Obligations in such order and manner as the Majority Lenders determine.
(b) Within seven days following the consummation of the Senior Notes
Offering, the Company shall pay to the Agent for account of the Lenders as
a mandatory prepayment of the Bridge Loans to be applied to the Obligations
in such order and manner as the Majority Lenders determine the lesser of
(i) an amount equal to the aggregate amount of all cash received by the
Company and its Subsidiaries in respect thereof net of reasonable expenses
incurred by the Company and its Subsidiaries in connection therewith or
(ii) an amount equal to the indefeasible payment in full of all
Obligations.
SECTION 3. INTEREST AND FEES
3.1 Interest.
(a) Each Borrower hereby promises to pay to the Agent, for the account
of each Lender, interest on the outstanding principal amount of such
Borrower's Bridge Loans and all other non-contingent Obligations which are
past due at the Interest Rate. All interest accruing hereunder on and after
the occurrence of any Event of Default or termination or non-renewal hereof
shall be payable on demand. Borrowers shall pay to the Agent for account of
each Lender, upon demand by any Lender (or any Lender may, at its option,
charge any loan account of Borrower) any amounts required to compensate any
Lender, the Reference Bank or any participant with any Lender for any cost
or expense incurred by such person, as a result of the conversion of the
Interest Rate from the Eurodollar Rate to the Prime Rate.
(b) Subject to the terms and conditions of this Agreement, Bridge
Loans may initially be Prime Rate Loans or Eurodollar Rate Loans at the
election of the Company. At least two Business Days prior to the date the
Bridge Loans are made hereunder, the Company shall notify the Agent that
Bridge Loans shall be either Eurodollar Rate Loans or Prime Rate Loans;
provided, however, all Bridge Loans outstanding shall either be Eurodollar
Rate Loans or Prime Rate Loans.
(c) The Company may request that Eurodollar Rate Loans be converted to
Prime Rate Loans at the end of an Interest Period. Subject to the terms and
conditions contained herein, three (3) Business Days after receipt by the
Agent of such a request from the Company, Eurodollar Rate Loans shall be
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converted to Prime Rate Loans, provided, that, all outstanding Eurodollar
Rate Loans are converted to Prime Rate Loans. Prime Rate Loans may not be
converted to Eurodollar Rate Loans.
(d) Any Eurodollar Rate Loans shall automatically convert to Prime
Rate Loans upon the last day of the applicable Interest Period, unless the
Agent has received and the Majority Lenders have approved, a request to
continue such Eurodollar Rate Loan at least three (3) Business Days prior
to such last day in accordance with the terms hereof. Any Eurodollar Rate
Loans shall, upon the determination of the Majority Lenders, upon notice by
the Agent to the Company, convert to Prime Rate Loans in the event that (i)
Default or an Event of Default, shall exist or (ii) this Agreement shall
terminate or not be renewed. Borrower shall pay to the Agent for account of
each Lender, upon demand by any Lender (or any Lender may, at its option,
charge any loan account of Borrower) any amounts required to compensate any
Lender, the Reference Lender or any participant with any Lender for any
cost or expense incurred by such person, as a result of the conversion of
Eurodollar Rate Loans to Prime Rate Loans pursuant to any of the foregoing.
(e) Interest shall be payable by Borrowers to the Agent for account of
each Lender monthly in arrears not later than the first day of each
calendar month and shall be calculated on the basis of a three hundred
sixty (360) day year and actual days elapsed. The interest rate on
non-contingent Obligations bearing interest at the Prime Rate shall
increase or decrease by an amount equal to each increase or decrease in the
Prime Rate effective on the first day of the month after any change in such
Prime Rate is announced based on the Prime Rate in effect on the last day
of the month in which any such change occurs. In no event shall charges
constituting interest payable by Borrowers to any Lender exceed the maximum
amount or the rate permitted under any applicable law or regulation, and if
any such part or provision of this Agreement is in contravention of any
such law or regulation, such part or provision shall be deemed amended to
conform thereto.
3.2 Maintenance Fee. In the event that any Bridge Loan shall be outstanding
on the date thirty days after the Effective Date, on such date Borrowers shall
pay to the Agent for the account of each Lender a fee equal to 1% of the
original aggregate principal amount of the Bridge Loan Commitment of such
Lender. In addition, in the event that any Bridge Loan shall be outstanding (i)
on the date ninety days after the Effective Date and (ii) one hundred and fifty
days after the Effective Date, on each such date Borrowers shall pay to the
Agent for account of each Lender a fee equal to 1% of the aggregate original
principal amount of the Bridge Loan Commitment of such Lender.
3.3 Late Fee. In the event that any Bridge Loan shall not be paid in full
on the Maturity Date, or payment of the Obligations are accelerated pursuant to
Section 10.2 (the "Acceleration Date"), Borrowers shall pay to the Agent for
account of each Lender on the Maturity Date or the Acceleration Date, as
applicable, and on each thirty day anniversary thereafter for so long as any
Bridge Loan shall remain outstanding a fee equal to 1% of the aggregate
principal amount outstanding of the Bridge Loans of such Lender as of each such
date.
SECTION 4. PAYMENTS; PRO RATA TREATMENT; INCREASED COSTS, ETC.
4.1 (a) All payments of principal, interest and other amounts to be made by
the Borrowers under this Agreement, the notes and the Fee Letter shall be made
in Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to the Agent pursuant to the following instructions: Norwest Bank
Minnesota, N.A., ABA ▇▇▇▇▇▇▇▇▇, Corporate Trust Clearing Account # ,
Account Number: , Account Name: Norwest MN TTEE for PPM America Special
Investments Fund (Short name: PPM America), Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇
▇▇▇▇▇▇▇▇, Reference Bucyrus International. All such amounts shall be made not
later than 1:00 p.m. New York time on the date on such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding U.S. Business Day).
(b) The amounts payable by the Borrowers at any time hereunder and under
the notes to each Lender shall be a separate and independent debt and each
Lender shall be entitled to protect and enforce its rights arising out of this
Agreement and the notes, and it shall not be necessary for any other Lender or
the Agent to consent to, or be joined as an additional party in, any proceedings
for such purposes.
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(c) Any Lender for whose account any such payment is to be made may (but
shall not be obligated to) debit the amount of any such payment that is not made
by such time to any ordinary deposit account of any Borrower with such Lender
(with notice to the Company and the Agent), provided that such Lender's failure
to give such notice shall not affect the validity thereof.
(d) Borrowers shall, at the time of making each payment under this
Agreement or any note for account of any Lender, specify to the Agent (which
shall so notify the intended recipient(s) thereof) the Bridge Loans or other
amounts payable by the Borrowers hereunder to which such payment is to be
applied (and in the event that the Borrowers fail to so specify, or if an Event
of Default has occurred and is continuing, the Agent may distribute such payment
to the Lenders for application in such manner as it, or the Majority Lenders,
subject to Section 4.2 hereof, may determine to be appropriate).
(e) Each payment received by the Agent under this Agreement or any note for
account of any Lender shall be paid by the Agent promptly to such Lender, in
immediately available funds, for account of such Lender's Applicable Lending
Office for the Bridge Loans or other obligation in respect of which such payment
is made.
(f) If the due date of any payment under this Agreement or any note would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
4.2 Pro Rata Treatment. Except to the extent otherwise provided herein: (a)
each borrowing of Bridge Loans from the Lenders under Section 2.1 hereof shall
be made from the relevant Lenders, each payment of fees under Section 3.2 hereof
shall be made for account of the relevant Lenders, pro rata according to the
amounts of their respective Bridge Loan Commitments; (b) each payment or
prepayment of principal of Bridge Loans by the Borrowers shall be made for
account of the relevant Lenders pro rata according with the respective unpaid
principal amounts of the Bridge Loans held by them; and (c) each payment of
interest on Bridge Loans and each payment of fees under Section 3.3 hereof by
the Borrowers shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest or fees (as the case may be) on such
Bridge Loans then due and payable to the respective Lenders.
4.3 Sharing of Payments. (a) Each Borrower agrees that, in addition to (and
without limitation of) any right of set-off, banker's lien or counterclaim a
Lender may otherwise have, each Lender shall be entitled, at its option (to the
fullest extent permitted by law), to set off and apply any deposit (general or
special, time or demand, provisional or final), or other indebtedness, held by
it for the credit or account of any Borrower at any of its offices, in Dollars
or in any other currency, against any principal of or interest on any of such
Lender's Bridge Loans, or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to any Borrower), in which case it shall promptly
notify the Company and the Agent thereof, provided that such Lender's failure to
give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Borrower payment of any principal
of or interest on any Bridge Loan owing to it or payment of any other amount
under this Agreement or any other Financing Agreement through the exercise of
any right of set-off, banker's lien or counterclaim or similar right or
otherwise (other than from the Agent as provided herein), and, as a result of
such payment, such Lender shall have received a greater percentage of the
principal of or interest on the Bridge Loans or such other amounts then due
hereunder or thereunder by any Borrower to such Lender than the percentage
received by any other Lender, it shall promptly purchase from such other Lenders
participations in (or, if and to the extent specified by such Lender, direct
interests in) the Bridge Loans or such other amounts, respectively, owing to
such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Bridge Loans or such other amounts,
respectively, owing to each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
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(c) Each Borrower agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Bridge
Loans or other amounts (as the case may be) owing to such Lender in the
amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain
the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a set-off to which this Section 4.3 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders
entitled under this Section 4.3 to share in the benefits of any recovery on
such secured claim.
4.4 Changes in Laws; Increased Costs of Loans.
(a) Notwithstanding anything to the contrary contained herein, all
Eurodollar Rate Loans shall, upon notice by any Lender to Agent and
Borrowers, convert to Prime Rate Loans in the event that (i) any change in
applicable law or regulation (or the interpretation or administration
thereof) shall either (A) make it unlawful for Lender, Reference Bank or
any participant to make or maintain Eurodollar Rate Loans or to comply with
the terms hereof in connection with the Eurodollar Rate Loans, by an amount
deemed by such Lender to be material, or (B) shall result in the increase
in the costs to any Lender, Reference Bank or any participant of making or
maintaining any Eurodollar Rate Loans or (C) reduce the amounts received or
receivable by any Lender in respect thereof, by an amount deemed by Lender
to be material or (ii) the cost to Lender, Reference Bank or any
participant of making or maintaining any Eurodollar Rate Loans shall
otherwise increase by an amount deemed by any Lender to be material.
Borrowers shall pay to such Lender, upon demand by such Lender (or such
Lender may, at its option, charge any loan account of Borrower) any amounts
required to compensate such Lender, the Reference Bank or any participant
with such Lender for any loss (including loss of anticipated profits), cost
or expense incurred by such person as a result of the foregoing, including,
without limitation, any such loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
person to make or maintain the Eurodollar Rate Loans or any portion
thereof. A certificate of any Lender setting forth the basis for the
determination of such amount necessary to compensate such Lender as
aforesaid shall be delivered to Agent and Borrowers and shall be
conclusive, absent manifest error.
(b) If any payments or prepayments in respect of the Eurodollar Rate
Loans are received by the Agent other than on the last day of the
applicable Interest Period (whether pursuant to acceleration, upon
maturity, upon prepayment or otherwise), Borrowers shall pay to the Agent
for the account of the Lenders upon demand by the Agent (or any Lender may,
at its option, as provided in Section 4.3 hereof, charge any loan account
of any Borrower) any amounts required to compensate such Lender, the
Reference Bank or any participant with such Lender for any additional loss
(including loss of anticipated profits), cost or expense incurred by such
person as a result of such prepayment or payment, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such person to make
or maintain such Eurodollar Rate Loans or any portion thereof.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions Precedent to Bridge Loans. Each of the following is a
condition precedent to the Lenders making the Bridge Loans hereunder:
(a) Lenders shall have received, in form and substance satisfactory to
Majority Lenders, evidence that the Purchase Agreements have been duly
executed and delivered by and to the appropriate parties thereto and the
transactions contemplated under the terms of the Purchase Agreements have
been consummated prior to or contemporaneously with the making of the
Bridge Loans hereunder in
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accordance with the terms thereof without any modification or waivers
thereunder (except any thereof which shall be consented to by the Majority
Lender);
(b) all requisite corporate action and proceedings in connection with
this Agreement and the other Financing Agreements shall be satisfactory in
form and substance to the Agent and the Majority Lenders, and Agent and
Lenders shall have received all information and copies of all documents,
including, without limitation, records of requisite corporate action and
proceedings which Agent or Lenders may have requested in connection
therewith, such documents where requested by Lenders or its counsel to be
certified by appropriate corporate officers or governmental authorities;
(c) no material adverse change shall have occurred in the financial
condition, assets (including the Purchased Assets), business or prospects
of the Company and its Consolidated Subsidiaries taken as a whole, since
the date of the latest financial statements dated June 30, 1997 furnished
to the Agent with respect to the Company and its Consolidated Subsidiaries
and no change or event shall have occurred which would impair the ability
of any Borrower or any Obligor to perform its obligations hereunder or
under any of the other Financing Agreements to which it is a party or of
Lenders to enforce the Obligations;
(d) Lenders shall have received, in form and substance satisfactory to
Lenders, a pro-forma balance sheet of the Company and its Consolidated
Subsidiaries reflecting the initial transactions contemplated hereunder,
including, but not limited to, (i) the consummation of the Acquisition and
the other transactions contemplated by the Purchase Agreements and (ii) the
Bridge Loan provided by Lenders to the Borrowers on the date hereof and the
use of the proceeds of the Bridge Loans as provided herein, accompanied by
a certificate, dated of even date herewith, of the chief financial officer
of the Company stating that such pro-forma balance sheet represents the
reasonable, good faith opinion of such officer as to the subject matter
thereof as of the date of such certificate;
(e) Lenders shall have received, in form and substance satisfactory to
Lenders, a closing certificate signed by the Chief Financial Officer of
each Borrower dated as of the date hereof and as of the Effective Date,
stating that (i) the representations and warranties set forth in Section 8
hereof are true and correct on and as of each such date, (ii) the Borrowers
are in compliance with all terms and provisions set forth in this Agreement
on each such date, and (iii) no Default or Event of Default, has occurred
or is continuing;
(f) Agent shall have received written instructions from the Borrowers
directing the application of proceeds of the Bridge Loans made pursuant to
this Agreement;
(g) Lenders shall have received, in form and substance satisfactory to
Lenders, a certificate from the Company regarding the solvency of the
Company and its Consolidated Subsidiaries, which includes a pro forma
balance sheet and cash flow projections, signed by the President and Chief
Financial Officer of the Company, dated as of the date hereof and as of the
Effective Date;
(h) Lenders shall have received, in form and substance satisfactory to
Lenders, the opinion letter of counsel(s) to the Borrowers with respect to
the Purchase Agreements and the Financing Agreements and such other matters
as Lenders may request; and
(i) the other Financing Agreements (including, without limitation, the
Guaranty Agreements and the Bridge Notes) and all instruments and documents
hereunder and thereunder shall have been duly executed and delivered to
Lenders, in form and substance satisfactory to Lenders.
(j) Lenders shall have received a certification by the President or
Chief Financial Officer of the Company with respect to the engagement of
▇▇▇▇▇▇▇▇ & Company, Inc. and Salomon Brothers Inc. as agents for the Senior
Notes Offering;
(k) Agent and Lenders shall have received such other information,
documents, agreements, commitments and undertakings as Agent and Lenders
shall reasonably request; and
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(l) All fees payable by the Borrowers hereunder and under the Fee
Letter on or prior to the Effective Date shall have been paid to the Agent
and the Lenders, as applicable.
5.2 Conditions Precedent to the Bridge Loans. Each of the following is an
additional condition precedent to Lenders making the Bridge Loans hereunder:
(a) all representations and warranties contained herein and in the
other Financing Agreements shall be true and correct with the same effect
as though such representations and warranties had been made on and as of
the date of the making of the Bridge Loans and after giving effect thereto;
and
(b) no Default and no Event of Default, shall exist or have occurred
and be continuing on and as of the date of the making of the Bridge Loans
and after giving effect thereto.
SECTION 6.COLLECTION AND ADMINISTRATION; JOINT SEVERALABILITY; RIGHTS OF
CONTRIBUTION
6.1 Payments. All Obligations shall be payable to the Agent on behalf of
the Lenders, as provided in Section 4.1(a) or such other place as Agent may
designate from time to time. Agent may apply payments received or collected from
any Borrower or for the account of any Borrower to such of the Obligations,
whether or not then due, in such order and manner as Agent determines. If after
receipt of any payment of, any of the Obligations, Agent or any Lender is
required to surrender or return such payment or proceeds to any Person for any
reason, then the Obligations intended to be satisfied by such payment or
proceeds shall be reinstated and continue and this Agreement shall continue in
full force and effect as if such payment or proceeds had not been received by
Agent or such Lender. Borrowers shall be liable to pay to Agent and Lenders, and
do hereby indemnify and hold Agent and Lenders harmless for the amount of any
payments or proceeds surrendered or returned. This Section 6.1 shall remain
effective notwithstanding any contrary action which may be taken by Agent or
Lenders in reliance upon such payment or proceeds. This Section 6.1 shall
survive the payment of the Obligations and the termination or non-renewal of
this Agreement.
6.2 Authorization to Make Loans. Each Lender is authorized to make the
Bridge Loans based upon telephonic or other instructions received from anyone
purporting to be an officer of the Company or other authorized person.
6.3 Use of Proceeds. Borrowers shall use the proceeds of the Bridge Loans
solely for: (a) payments to the Seller in accordance with the Purchase
Agreements with respect to the Acquisition (b) costs, expenses and fees in
connection with the preparation, negotiation, execution and delivery of the
Purchase Agreements, this Agreement and the other Financing Agreements (c)
capital contributions or loans to the Subsidiary Borrowers and to Bucyrus
(Africa) (Proprietary) Limited not to exceed $7,000,000 in the aggregate and (d)
working capital purposes. None of the proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security or for
the purposes of reducing or retiring any indebtedness which was originally
incurred to purchase or carry any margin security or for any other purpose which
might cause any of the Bridge Loans to be considered a "purpose credit" within
the meaning of Regulation G of the Board of Governors of the Federal Reserve
System, as amended.
6.4 Limitation on Obligations. Notwithstanding anything herein to the
contrary, the liability of each of the Subsidiary Borrowers hereunder and under
the Financing Agreements is expressly limited to the outstanding principal
amount due under the Bridge Loans made by the Lenders to such Subsidiary
Borrower plus interest, and such Subsidiary Borrower's pro rata share of all
charges, fees, costs and expenses and other Obligations, however evidenced,
related to such Bridge Loans.
6.5 Guaranty.
(a) The Company hereby guarantees to each Lender and the Agent and
their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal
of and interest on the Bridge Loans made by the Lenders to the Subsidiary
Borrowers and all other Obligations from time to time owing to the Lenders
or the Agent by the Subsidiary Borrowers under this Agreement, the Bridge
Notes and the Financing Agreements, in each
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case strictly in accordance with the terms thereof (such obligations being
herein collectively called the "Guaranteed Obligations"). The Company
hereby further agrees that if any of the Subsidiary Borrowers shall fail to
pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Company will promptly pay
the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the
terms of such extension or renewal.
(b) The obligations of the Company under Section 6.5(a) hereof are, to
the fullest extent permitted by law, absolute and unconditional
irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Subsidiary Borrowers under this
Agreement, the Bridge Notes or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or any security for any of the Guaranteed Obligations, and, to
the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the
intent of this Section 6.5(b) that the obligations of the Company hereunder
shall be absolute and unconditional under any and all circumstances (other
than full and final payment of the Guaranteed Obligations). Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following
shall not alter or impair the liability of the Company hereunder which
shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Company, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) Any of the acts mentioned in any of the provisions of this
Agreement or the Bridge Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Bridge Notes or any other agreement or instrument
referred to herein or therein shall be waived or any other guarantee of
any of the Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with;
the Company hereby expressly waives diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that the
Agent or any Lender exhaust any right, power or remedy or proceed against
the Subsidiary Borrowers under this Agreement or the Bridge Notes or any
other agreement or instrument referred to herein or therein, or against any
other Person under any other guarantee of, or security for, any of the
Guaranteed Obligations.
(c) The obligations of the Company under this Section 6.5 shall be
automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Subsidiary Borrowers in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Company
agrees that it will indemnify the Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, fees of
counsel) incurred by the Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
(d) The Company hereby postpones all rights of subrogation or
contribution until such time as the Obligations have been fully, finally
and indefeasibly paid in full in cash, whether arising by contract or
operation of law (including, without limitation, any such right arising
under the Bankruptcy Code) or otherwise by reason of any payment by it
pursuant to the provisions of this Section 6.5.
(e) The guarantee in this Section 6.5 is a continuing guarantee, and
shall apply to all Guaranteed Obligations whenever arising.
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SECTION 7. AGENT
7.1 Appointment, Powers and Immunities. Each Lender hereby appoints and
authorizes the Agent to act as its agent hereunder and under the other Financing
Agreements with such powers as are specifically delegated to the Agent by the
terms of this Agreement and of the other Financing Agreements, together with
such other powers as are reasonably incidental thereto. The Agent (which term as
used in this sentence and in Section 7.5 and the first sentence of Section 7.6
hereof shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Financing Agreements, and
shall not by reason of this Agreement be a trustee for any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Financing Agreements, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or any other Financing Agreements, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any note or any other Financing Agreements or any other document
referred to or provided for herein or therein or for any failure by any
Borrower or any other Person to perform any of its obligations hereunder or
thereunder;
(c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Financing Agreements;
and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Financing Agreements or under any
other document or instrument referred to or provided for herein or therein
or in connection herewith or therewith, except for its own gross negligence
or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it in good faith. The Agent may deem and treat the payee of a note
as the holder thereof for all purposes hereof unless and until an assignment
agreement in form and substance satisfactory to the Agent, shall have been filed
with the Agent.
7.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including, without limitation, any
thereof by telephone, telecopy, telegram or cable) reasonably believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any other Financing
Agreements, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders as is required in such circumstance, and such
instructions of such Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
7.3 Defaults. The Agent shall not be deemed to have knowledge or notice of
the occurrence of a Default unless the Agent has received notice from a Lender
or any Borrower specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice of the
occurrence of a Default, the Agent shall give prompt notice thereof to the
Lenders. The Agent shall (subject to Section 7.7 hereof) take such action with
respect to such Default as shall be directed by the Majority Lenders, provided
that, unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default as it shall deem advisable in the best
interest of the Lenders except to the extent that this Agreement expressly
requires that such action be taken, or not be taken, only with the consent or
upon the authorization of all of the Lenders.
7.4 Rights as a Lender. With respect to its Bridge Loan Commitment and the
Bridge Loans made by it, the Fund (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" shall, unless the context otherwise indicates,
include the Agent in its individual
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capacity. The Fund (and any successor acting as Agent) and its affiliates may
(without having to account therefor to any Lender) accept deposits from, lend
money to, make investments in and generally engage in any kind of banking, trust
or other business with the Borrowers (and any of its subsidiaries or affiliates)
as if it were not acting as the Agent, and the Fund (and any such successor) and
its affiliates may accept fees and other consideration from the Borrowers for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
7.5 Indemnification. The Lenders agree to indemnify the Agent ratably in
accordance with their respective Bridge Loans, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Agent (including by any Lender) arising
out of or by reason of any investigation in or in any way relating to or arising
out of this Agreement or any other Financing Agreements or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby, provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified.
7.6 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrowers and their subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or under any other
Financing Agreement. The Agent shall not be required to keep itself informed as
to the performance or observance by the Borrowers of this Agreement or any of
the other Financing Agreements or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrowers or any
of their subsidiaries. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Borrowers or any of its subsidiaries (or any of
their affiliates) that may come into the possession of the Agent or any of its
affiliates.
7.7 Failure to Act. Except for action expressly required of the Agent
hereunder and under the other Financing Agreements, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder unless
it shall receive further assurances to its satisfaction from the Lenders of
their indemnification obligations under Section 7.5 hereof against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action.
7.8 Resignation or Removal of Agent. The Agent may resign at any time by
giving notice thereof to the Lenders and the Company, and the Agent may be
removed at any time with or without cause by the Lenders holding at least 75% of
the aggregate outstanding principal amount of the Bridge Loans. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Section 7 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as the Agent.
7.9 Settlement with Lenders. Payments of principal, interest and fees in
respect of the Bridge Loans will be settled one U.S. Business Day after the U.S.
Business Day received in accordance with the provisions of Section 4 hereunder.
7.10 Return of Payments. If Agent determines at any time that any amount
received by Agent under this Agreement or the Financing Agreements must be
returned to any Borrower or paid to any other person pursuant to any solvency
law or otherwise, then, notwithstanding any other term or condition of this
Agreement or the Financing Agreements, Agent will not be required to distribute
any portion thereof to any Lender. In addition, each Lender will repay to Agent
on demand any portion of such amount that Agent has distributed to such Lender,
together with interest at such rate, if any, as Agent is required to pay to
Borrowers or such other Person, without set-off, counterclaim or deduction of
any kind.
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SECTION 8. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Agent and the Lenders
the following (which shall survive the execution and delivery of this
Agreement), the truth and accuracy of which are a continuing condition of the
making of the Bridge Loans by the Lenders to the Borrowers:
8.1 Corporate Existence, Power and Authority; Subsidiaries. Each Borrower
is a corporation duly organized and in good standing under the laws of its state
(or country) of incorporation (or organization) and is duly qualified as a
foreign corporation and in good standing in all states or other jurisdictions
where the nature and extent of the business transacted by it or the ownership of
assets makes such qualification necessary, except for those jurisdictions in
which the failure to so qualify would not have a material adverse effect on such
Borrower's financial condition, results of operation or business. The execution,
delivery and performance of this Agreement, the other Financing Agreements and
the transactions contemplated hereunder and thereunder are all within each
Borrower's corporate powers, have been duly authorized and are not in
contravention of law or the terms of each Borrower's certificate of
incorporation, by-laws, or other organizational documentation, or any indenture,
agreement or undertaking to which any Borrower is a party or by which any
Borrower or its respective property are bound and which is material to the
Company and its Consolidated Subsidiaries taken as a whole. This Agreement and
the other Financing Agreements constitute legal, valid and binding obligations
of Borrowers enforceable in accordance with their respective terms. Neither the
Company nor the Borrowing Subsidiaries have any subsidiaries except as set forth
on Schedule 8.1.
8.2 Financial Statements; No Material Adverse Change. All quarterly and
annual financial statements relating to the Company and its Consolidated
Subsidiaries which have been or may hereafter be delivered by any Borrower to
Lenders have been prepared in accordance with GAAP and all financial statements
fairly present the financial condition and the results of operation of such
Borrower as at the dates and for the periods set forth therein. There has been
no material adverse change in the assets (including the Purchased Assets),
liabilities, properties and condition, financial or otherwise, of the Company
and its Consolidated Subsidiaries taken as a whole since the date of the most
recent audited financial statements furnished by Borrowers to Lenders prior to
the date of this Agreement.
8.3 Tax Returns. Each Borrower has filed, or caused to be filed, in a
timely manner all tax returns, reports and declarations which are required to be
filed by it (without requests for extension except as previously disclosed in
writing to Lenders). All information in such tax returns, reports and
declarations is complete and accurate in all material respects. Each Borrower
has paid or caused to be paid all taxes due and payable or claimed due and
payable in any assessment received by it, or in accordance with a written
agreement between such Borrower and any taxing authority to which taxes are due
and payable, except taxes the validity of which are being contested in good
faith by appropriate proceedings diligently pursued and available to such
Borrower and with respect to which adequate reserves have been set aside on its
books. Adequate provision has been made for the payment of all accrued and
unpaid Federal, State, county, local, foreign and other taxes whether or not yet
due and payable and whether or not disputed.
8.4 Litigation. Except as set forth on Schedule 8.4, there is no present
investigation by any governmental agency pending, or to the best of each
Borrower's knowledge threatened, against or affecting any of any Borrower, any
of its respective subsidiaries, its respective assets (including the Purchased
Assets) or business and there is no action, suit, proceeding or claim by any
Person pending, or to the best of Borrower's knowledge threatened, against any
Borrower, any of its respective subsidiaries, or its respective assets
(including the Purchased Assets) or goodwill, or against or affecting any
transactions contemplated by this Agreement or the Purchase Agreements, which if
adversely determined against any Borrower, any of its respective subsidiaries
would result in any material adverse change in the assets, business or prospects
of the Company and its Consolidated Subsidiaries, taken as a whole or would
impair the ability of the Company, the Subsidiary Borrowers and the Guarantors
taken as a whole to perform their obligations hereunder or under any of the
other Financing Agreements to which any of them are a party or of Lenders to
enforce any Obligations.
8.5 Compliance with Other Agreements and Applicable Laws. No Borrower is in
default in any material respect under, or in violation in any material respect
of any of the terms of, any material agreement, contract,
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instrument, lease or other commitment to which it is a party or by which it or
any of its assets are bound and each Borrower is in compliance in all material
respects with all applicable provisions of laws, rules, regulations, licenses,
permits, approvals and orders of any foreign, Federal, State or local
governmental authority, except as set forth on Schedule 8.5.
8.6 Employee Benefits.
(a) No Borrower has engaged in any transaction in connection with
which such Borrower or any of its ERISA Affiliates could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or a
tax imposed by Section 4975 of the Code, including any accumulated funding
deficiency described in Section 8.6(c) hereof and any deficiency with
respect to vested accrued benefits described in Section 8.6(d) hereof.
(b) No liability to the Pension Benefit Guaranty Corporation has been
or is expected by any Borrower to be incurred with respect to any employee
pension benefit plan of such Borrower or any of its ERISA Affiliates.
Except as set forth on Schedule 8.8 attached hereto there has been no
reportable event (within the meaning of Section 4043(b) of ERISA) or any
other event or condition with respect to any employee pension benefit plan
of any Borrower or any of its respective ERISA Affiliates which presents a
risk of termination of any such plan by the Pension Benefit Guaranty
Corporation.
(c) Full payment has been made of all amounts which any Borrower or
any of its respective ERISA Affiliates is required under Section 302 of
ERISA and Section 412 of the Code to have paid under the terms of each
employee pension benefit plan as contributions to such plan as of the last
day of the most recent fiscal year of such plan ended prior to the date
hereof, except as set forth on Schedule 8.6 attached hereto, which failure
to make full payment shall be remedied prior to any Borrower or any of its
ERISA Affiliates being subject to either a civil penalty, tax or other
liability imposed by the Code or ERISA, and no accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, exists with respect to any employee pension
benefit plan, including any penalty or tax described in Section 8.6(a)
hereof and any deficiency with respect to vested accrued benefits described
in Section 8.6(d) hereof, except as set forth on Schedule 8.6 attached
hereto.
(d) Except as set forth on Schedule 8.6 attached hereto, the current
value of all vested accrued benefits under all employee pension benefit
plans maintained by any Borrower that are subject to Title IV of ERISA does
not exceed the current value of the assets of such plans allocable to such
vested accrued benefits, including any penalty or tax described in Section
8.6(a) hereof and any accumulated funding deficiency described in Section
8.6(c) hereof. the terms "current value" and "accrued benefit" have the
meanings specified in ERISA.
(e) No Borrower nor any of its respective ERISA affiliates is or has
ever been obligated since December 14, 1994 to contribute to any
"multiemployer plan" (as such term is defined in Section 4001(a)(3) of
ERISA) that is subject to Title IV of ERISA.
8.7 Acquisition of Purchased Assets.
Prior to the making of the Bridge Loans:
(a) The Purchase Agreements and the transactions contemplated
thereunder shall have been duly executed, delivered and performed in
accordance with their terms by the respective parties thereto in all
respects, including the fulfillment (not merely the waiver, except as may
be disclosed to Lenders and consented to in writing by Lenders) of all
material conditions precedent set forth therein and giving effect to the
terms of the Purchase Agreements and the assignments to be executed and
delivered by any Seller (or any of its respective affiliates or
subsidiaries) thereunder, the Borrowers shall have acquired and have good
and marketable title to the Purchased Assets, free and clear of all claims,
liens, pledges and encumbrances of any kind, except as permitted hereunder.
(b) All actions and proceedings, required by the Purchase Agreements,
applicable law or regulation shall have been taken and the transactions
required thereunder shall have been duly and validly taken and consummated.
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(c) No court of competent jurisdiction shall have issued any
injunction, restraining order or other order which prohibits consummation
of the transactions described in the Purchase Agreements and no
governmental or other action or proceeding shall have been threatened or
commenced, seeking any injunction, restraining order or other order which
seeks to void or otherwise modify the transactions described in the
Purchase Agreements.
(d) The Company shall have delivered, or caused to be delivered, to
Lenders, true, correct and complete copies of the Purchase Agreements.
8.8 Intentionally Omitted.
8.9 Accuracy and Completeness of Information. All information furnished by
or on behalf of any Borrower in writing to Lenders in connection with this
Agreement or any of the other Financing Agreements or any transaction
contemplated hereby or thereby is true and correct in all material respects on
the date as of which such information is dated or certified and does not omit
any material fact necessary in order to make such information not misleading. No
event or circumstance has occurred which has had or could reasonably be expected
to have a material adverse affect on the business, assets or prospects of the
Company and its Consolidated Subsidiaries, taken as a whole, which has not been
fully and accurately disclosed to Lenders in writing.
8.10 Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any governmental or regulatory authority or agency, or
any securities exchange, are necessary for the consummation of the Acquisition
other than those authorizations, approvals, consents, filings and registrations
which have already been obtained.
8.11 Survival of Warranties; Cumulative. All representations and warranties
contained in this Agreement or any of the other Financing Agreements shall
survive the execution and delivery of this Agreement and shall be deemed to have
been made again to Lenders on the date of each credit accommodation hereunder.
The representations and warranties set forth herein shall be cumulative and in
addition to any other representations or warranties which Borrowers shall now or
hereafter give, or cause to be given, to Lenders.
SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS
9.1 Maintenance of Existence. Each Borrower shall, and shall cause each of
its subsidiaries to, at all times preserve, renew and keep in full, force and
effect its corporate existence and rights and franchises with respect thereto
and maintain in full force and effect all permits, licenses, trademarks,
tradenames, approvals, authorizations, leases and contracts necessary to carry
on the business as presently or proposed to be conducted; provided, however, a
Consolidated Subsidiary of the Company may merge with and into the Company
provided the Company is the surviving entity.
9.2 Compliance with Laws, Regulations, Etc. Each Borrower shall, and shall
cause each of its Consolidated Subsidiaries to, at all times, comply in all
material respects with all laws, rules, regulations, licenses, permits,
approvals and orders applicable to it and duly observe all material requirements
of any Federal, State or local government authority, including, without
limitation, the Employee Retirement Security Act of 1974, as amended, the
Occupational Safety and Hazard Act of 1970, as amended, the Fair Labor Standards
Act of 1938, as amended, and all statutes, rules, regulations, orders, permits
and stipulations relating to environmental pollution and employee health and
safety, including, without limitation, all of the Environmental Laws.
9.3 Payment of Taxes and Claims. Each Borrower shall, and shall cause each
of its Consolidated Subsidiaries to, duly pay and discharge all taxes,
assessments, contributions and governmental charges upon or against it or its
properties or assets, except for taxes the validity of which are being contested
in good faith by appropriate proceedings diligently pursued and available to
such Borrower and with respect to which adequate reserves have been set aside on
its books. Each Borrower shall be liable for any tax or penalties imposed on
Lenders as a result of the financing arrangements provided for herein and each
Borrower agrees to indemnify and hold Lenders harmless with respect to the
foregoing, and to repay to Lenders on demand the amount thereof, and until paid
by the Borrowers such amount shall be added and deemed part of the Bridge Loans,
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provided, that, nothing contained herein shall be construed to require any
Borrower to pay any income or franchise taxes attributable to the income of
Lenders from any amounts charged or paid hereunder to Lenders. The foregoing
indemnity shall survive the payment of the Obligations and the termination of
this Agreement.
9.4 Financial Statements and Other Information.
(a) Each Borrower shall keep proper books and records in which true
and complete entries shall be made of all dealings or transactions of or in
relation to the business of Borrower and its subsidiaries (if any) in
accordance with GAAP and Borrower shall furnish or cause to be furnished to
Agent: (i) within twenty-five (25) days after the end of each fiscal month,
monthly unaudited consolidated financial statements of Borrowers (including
in each case balance sheets, statements of income and loss, and statements
of cash flow), all in reasonable detail, fairly presenting the financial
position and the results of the operations of Borrowers and their
subsidiaries, as applicable, as of the end of and through such fiscal month
and (ii) within ninety (90) days after the end of each fiscal year, audited
consolidated and upon the request of Agent consolidating financial
statements of Borrowers and their subsidiaries (including in each case
balance sheets, statements of income and loss, statements of cash flow and
statements of shareholders' equity), and the accompanying notes thereto,
all in reasonable detail, fairly presenting the financial position and the
results of the operations of Borrowers and their subsidiaries, as
applicable, as of the end of and for such fiscal year, together with the
opinion of independent certified public accountants, which accountants
shall be an independent accounting firm selected by Borrowers and
reasonably acceptable to Agent, that such financial statements have been
prepared in accordance with GAAP, and present fairly the results of
operations and financial condition of Borrowers and their subsidiaries as
of the end of and for the fiscal year then ended.
(b) The Company shall promptly notify Agent in writing of the details
of the occurrence of any Default or Event of Default.
(c) The Company shall furnish or cause to be furnished to Agent (i)
quarterly projections for the current fiscal year within twenty-five (25)
days after the first day of such fiscal quarter, commencing with the fourth
fiscal quarter of 1997, (ii) annual budgets by January 31 of each year for
such fiscal year and (iii) such other information respecting the business
of any Borrower, as Agent may, from time to time, reasonably request. Agent
and Lenders are hereby authorized to deliver a copy of any financial
statement or any other information relating to the business of any Borrower
to any court or other government agency required by law to do so. Each
Borrower hereby irrevocably authorizes and directs all accountants or
auditors to deliver to Agent, at Borrower's expense, copies of the
financial statements of the Borrowers and any reports or management letters
prepared by such accountants or auditors on behalf of the Borrowers and to
disclose to Agent such information as they may have regarding the business
of the Borrowers. Any documents, schedules, invoices or other papers
delivered to Agent may be destroyed or otherwise disposed of by Agent one
(1) year after the same are delivered to Agent, except as otherwise
designated by the Company to Agent in writing.
9.5 Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower
shall, nor shall it permit any of its Consolidated Subsidiaries to, directly or
indirectly, (a) except as permitted in Section 9.1, merge into or with or
consolidate with any other Person or permit any other Person to merge into or
with or consolidate with it or (b) sell, assign, lease, transfer, abandon or
otherwise dispose of any stock or indebtedness to any other Person or any of its
assets to any other Person, except for (i) sales of stock to employees pursuant
to an employee stock ownership plan upon terms and conditions reasonably
acceptable to Majority Lenders, (ii) the ▇▇▇▇▇▇ Assets, (iii) sales in the
ordinary course of business, (iv) the real property set forth in Schedule 9.5,
(v) the disposition of worn-out or obsolete equipment or equipment no longer
used in the business of borrower, provided, that, for so long as an Event of
Default exists or has occurred and is continuing, any net proceeds from the
disposition of such equipment are paid to Agent and such sales do not involve
equipment having an aggregate appraised market value in excess of $500,000 for
all such Equipment (other than the ▇▇▇▇▇▇ Assets) disposed of in any fiscal year
of Borrower, or (c) form or acquire any subsidiaries or any property or business
of any person (other than the Acquisition), or (d) wind up, liquidate or
dissolve or (e) agree to do any of the foregoing.
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9.6 Encumbrances. No Borrower shall, nor shall it permit any of its
Consolidated Subsidiaries to, create, incur, assume or suffer to exist any
security interest, mortgage, pledge, lien, charge or other encumbrance of any
nature whatsoever on any of its assets or properties, except: (a) in existence
on the date hereof and set forth in Schedule 9.6 or as reflected in the
Company's consolidated financial statements dated June 30, 1997; (b) liens
securing the payment of taxes, either not yet overdue or the validity of which
are being contested in good faith by appropriate proceedings diligently pursued
and available to Borrower and with respect to which adequate reserves have been
set aside on its books; (c) non-consensual statutory liens (other than liens
securing the payment of taxes) arising in the ordinary course of such Borrower's
business to the extent: (i) such liens secure indebtedness which is not overdue
or (ii) such liens secure indebtedness relating to claims or liabilities which
are fully insured and being defended at the sole cost and expense and at the
sole risk of the insurer or being contested in good faith by appropriate
proceedings diligently pursued and available to such Borrower, in each case
prior to the commencement of foreclosure or other similar proceedings and with
respect to which adequate reserves have been set aside on its books; (d)zoning
restrictions, easements, licenses, covenants and other restrictions affecting
the use of real property which do not interfere in any material respect with the
use of such real property or ordinary conduct of the business of such Borrower
as presently conducted thereon or materially impair the value of the real
property which may be subject thereto; (e) purchase money security interests in
Equipment (including capital leases) and purchase money mortgages on real estate
not to exceed $3,000,000 in the aggregate at any time outstanding so long as
such security interests and mortgages do not apply to any property of such
Borrower other than the Equipment or real estate so acquired, and the
indebtedness secured thereby does not exceed the cost of the Equipment or real
estate so acquired, as the case may be; and (f) liens in connection with Project
Financing.
9.7 Indebtedness. No Borrower shall, nor shall it permit any of its
Consolidated Subsidiaries to, incur, create, assume, become or be liable in any
manner with respect to, or permit to exist, any obligations or indebtedness,
except (a) the Obligations; (b) trade obligations and normal accruals in the
ordinary course of business not yet due and payable, or with respect to which
such Borrower is contesting in good faith the amount or validity thereof by
appropriate proceedings diligently pursued and available to such Borrower, and
with respect to which adequate reserves have been set aside on its books; (c)
purchase money indebtedness (including capital leases) to the extent not
incurred or secured by liens (including capital leases) in violation of any
other provision of this Agreement; (d) in connection with Project Financing; (e)
obligations under the Bank One Credit Agreement existing on the date hereof; (f)
obligations under that certain Indenture dated as of December 14, 1994 between
the Company and ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee; (g) unsecured short
term debt not for borrowed money in an aggregate amount not to exceed
$2,000,000; (h)debt with respect to interest rate protection agreements; and (i)
obligations or indebtedness set forth on Schedule 9.7 hereto or as reflected in
the Company's consolidated financial statements dated June 30, 1997; provided,
that, (i) except with respect to payments made under the revolving credit
facility provided for in the Bank One Credit Agreement, such Borrower may only
make regularly scheduled payments of principal and interest in respect of any
indebtedness set forth in this Section 9.7 in accordance with the terms of the
agreement or instrument evidencing or giving rise to such indebtedness as in
effect on the date hereof, (ii) such Borrower shall not, directly or indirectly,
(A) amend, modify, alter or change the terms of such indebtedness or any
agreement, document or instrument related thereto as in effect on the date
hereof if such amendment, modification, alteration or change would have the
effect of increasing such indebtedness, or (B) redeem, retire, deface, purchase
or otherwise acquire such indebtedness, or set aside or otherwise deposit or
invest any sums for such purpose, and (iii) such Borrower shall furnish to Agent
all notices or demands in connection with such indebtedness in excess of
$500,000 either received by such Borrower or on its behalf, promptly after the
receipt thereof, or sent by such Borrower on its behalf, concurrently with the
sending thereof, as the case may be.
9.8 Loans, Investments, Guarantees, Etc. Except as otherwise provided in
other provisions of this Agreement, each Borrower shall not, nor shall it permit
any of its Consolidated Subsidiaries to, directly or indirectly, make any loans
or advance money or property to any person, or invest in (by capital
contribution, dividend or otherwise) or purchase or repurchase the stock or
indebtedness or all or a substantial part of the assets or property of any
person, or guarantee, assume, endorse, or otherwise become responsible for
(directly or indirectly) the indebtedness, performance, obligations or dividends
of any Person or agree to do any of the
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foregoing, except: (a) loans and advances to employees and agents in the
ordinary course of business for travel and entertainment expenses and similar
items; (b) intercompany loans from any Borrower to another Borrower or to a
subsidiary of a Borrower provided such amount does not exceed $15,000,000 in the
aggregate; (c) the endorsement of instruments for collection or deposits in the
ordinary course of business; (d) investments in: (i) short-term direct
obligations of the United States Government, and (ii) commercial paper rated A1
or P1, and (e) the guarantees set forth on Schedule 9.8 hereof.
9.9 Dividends and Redemptions. The Company shall not, directly or
indirectly, declare or pay any dividends on account of any shares of any class
of capital stock of the Company now or hereafter outstanding, or set aside or
otherwise deposit or invest any sums for such purpose, or redeem, retire,
deface, purchase or otherwise acquire any shares of any class of capital stock
(or set aside or otherwise deposit or invest any sums for such purpose) for any
consideration other than common stock except for shares of capital stock held by
employees pursuant to an employee stock ownership plan or employment agreement
or apply or set apart any sum, or make any other distribution (by reduction of
capital or otherwise) in respect of any such shares or agree to do any of the
foregoing, except as set forth on Schedule 9.9 hereto.
9.10 Transactions with Affiliates. No Borrower shall, nor shall it permit
any of its Consolidated Subsidiaries to, enter into any transaction for the
purchase, sale or exchange of property or the rendering of any service to or by
any affiliate, nor shall it permit any of its subsidiaries to, except for: (a)
in the ordinary course of and pursuant to the reasonable requirements of such
Borrower's business which is in the best interest of the Company and its
Consolidated Subsidiaries taken as a whole or (b) upon fair and reasonable terms
no less favorable to such Borrower than such Borrower would obtain in a
comparable arm's length transaction with an unaffiliated person.
9.11 Compliance with ERISA. Each Borrower shall not with respect to any
"employee pension benefit plans" maintained by such Borrower or any of its ERISA
Affiliates:
(a) (i) terminate any of such employee pension benefit plans so as to
incur any liability to the Pension Benefit Guaranty Corporation established
pursuant to ERISA, (ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust created
thereunder which would subject such Borrower or such ERISA Affiliate to a
tax or penalty or other liability on prohibited transactions imposed under
Section 4975 of the Code or ERISA, (iii) fail to pay to any such employee
pension benefit plan any contribution which it is obligated to pay under
Section 302 of ERISA, Section 412 of the Code or the terms of such plan,
(iv) allow or suffer to exist any accumulated funding deficiency, whether
or not waived, with respect to any such employee pension benefit plan, (v)
allow or suffer to exist any occurrence of a reportable event or any other
event or condition which presents a material risk of termination by the
Pension Benefit Guaranty Corporation of any such employee pension benefit
plan that is a single employer plan, which termination could result in any
liability to the Pension Benefit Guaranty Corporation or (vi) incur any
withdrawal liability with respect to any multiemployer pension plan.
(b) As used in this Section 9.11, the terms "employee pension benefit
plans," "employee benefit plans,", "accumulated funding deficiency" and
"reportable event" shall have the respective meanings assigned to them in
ERISA, and the term "prohibited transaction" shall have the meaning
assigned to it in section 4975 of the Code and ERISA.
9.12 Costs and Expenses. Each Borrower shall pay to Agent and Lenders on
demand all costs, expenses, filing fees and taxes (other than income or
franchise taxes of Agent or any Lender) paid or payable in connection with the
preparation, negotiation, execution, delivery, recording, administration,
collection, liquidation, enforcement and defense of the Obligations, this
Agreement, the other Financing Agreements and all other documents related hereto
or thereto, including any amendments, supplements or consents which may
hereafter be contemplated (whether or not executed) or entered into in respect
hereof and thereof, including, but not limited to: (a) costs and expenses paid
or incurred in connection with obtaining payment of the Obligations, and
otherwise enforcing the provisions of this Agreement and the other Financing
Agreements or defending any claims made or threatened against Agent or Lenders
arising out of the transactions contemplated hereby and thereby not caused by
the gross negligence or wilful misconduct of Agent or Lender
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(including, without limitation, preparations for and consultations concerning
any such matters); and (b) the reasonable fees and disbursements of counsel
(including legal assistants) to Agent and Lenders in connection with any of the
foregoing.
9.13 Capital Expenditures. No Borrower shall, nor shall it permit any of
its Consolidated Subsidiaries to, make or incur any Capital Expenditures, if
after giving effort thereto, the aggregate amount of all Capital Expenditures by
the Borrowers and their Consolidated Subsidiaries would exceed $7,000,000 during
any fiscal year.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES
10.1 Events of Default. The occurrence or existence of any one or more of
the following events are referred to herein individually as an "Event of
Default", and collectively as "Events of Default":
(a) Any Borrower (i) fails to pay when due any of the Obligations;
(ii) or fails to perform any of the terms, covenants, conditions or
provisions contained in this Agreement or any of the other Financing
Agreements and such failure to perform is not cured to Agent's and the
Majority Lenders' satisfaction within fifteen (15) days after the sooner to
occur of the Company's receipt of notice of such failure from Agent or any
Lender or the date on which such failure becomes known to any officer of
the Company but provided such failure is capable of being cured within such
15 day period;
(b) any representation, warranty or statement of fact made by any
Borrower to Agent or Lenders in this Agreement, the other Financing
Agreements or any other agreement, schedule, confirmatory assignment or
otherwise shall when made or deemed made be false or misleading in any
material respect;
(c) any Guarantor revokes, terminates or fails to perform any of the
terms, covenants, conditions or provisions of any guarantee, endorsement or
other agreement of such party in favor of Lenders;
(d) any judgment for the payment of money is rendered against any
Borrower or any Guarantor in excess of $750,000 in any one case or in
excess of $1,000,000 in the aggregate and shall remain undischarged or
unvacated for a period in excess of forty-five (45) days or execution shall
at any time not be effectively stayed, or any judgment other than for the
payment of money, or injunction, attachment, garnishment or execution is
rendered against any Borrower or any Guarantor or any of their assets;
(e) any Guarantor (being a natural person or a general partner of a
Guarantor which is a partnership) dies or any Borrower or any Guarantor,
which is a partnership or corporation, dissolves or suspends or
discontinues doing business;
(f) any Borrower or any Guarantor becomes insolvent (however defined
or evidenced), makes an assignment for the benefit of creditors, makes or
sends notice of a bulk transfer or calls a meeting of its creditors or
principal creditors with respect to its inability to pay its obligations
owed to such creditors on customary terms;
(g) a case or proceeding under the bankruptcy laws of the United
States of America now or hereafter in effect or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in effect
(whether at law or in equity) is filed against any Borrower or any
Guarantor or all or any part of its properties and such petition or
application is not dismissed within sixty (60) days after the date of its
filing any Borrower or any Guarantor shall file any answer admitting or not
contesting such petition or application or indicates its consent to,
acquiescence in or approval of, any such action or proceeding or the relief
requested is granted sooner;
(h) a case or proceeding under the bankruptcy laws of the United
States of America now or hereafter in effect or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in effect
(whether at a law or equity) is filed by any Borrower or any Guarantor or
for all or any part of its property; or
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(i) any default by any Borrower or any Guarantor under any agreement,
document or instrument relating to any indebtedness for borrowed money
owing to any person other than Lenders, or any capitalized lease
obligations, contingent indebtedness in connection with any guarantee,
letter of credit, indemnity or similar type of instrument in favor of any
person other than Lenders, in any case in an amount in excess of $500,000,
which default continues for more than the applicable cure period, if any,
with respect thereto, or any default by any Borrower or any Guarantor under
any material contract, lease, license or other obligation to any person
other than Lenders, which default continues for more than the applicable
cure period, if any, with respect thereto;
(j) a Change of Control shall occur with respect to any Borrower other
than pursuant to the AIP Acquisition;
(k) the indictment or threatened indictment of any Borrower or any
Guarantor under any criminal statute, or commencement or threatened
commencement of criminal or civil proceedings against any Borrower or any
Guarantor, pursuant to which statute or proceedings the penalties or
remedies sought or available include forfeiture of any of the material
property of such Borrower or such Guarantor;
(l) there shall be a material adverse change in the business, assets
or prospects of the Company and its Consolidated Subsidiaries, taken as a
whole, after the date hereof; or
(m) there shall be an event of default under any of the other
Financing Agreements, which default is not cured within the period set
forth therein.
10.2 Remedies.
(a) At any time an Event of Default exists or has occurred and is
continuing, Agent and Lenders shall have all rights and remedies provided
in this Agreement, the other Financing Agreements, and other applicable
law, all of which rights and remedies may be exercised without notice to or
consent by the Borrowers or any Obligor, except as such notice or consent
is expressly provided for hereunder or required by applicable law. All
rights, remedies and powers granted to Agent and Lenders hereunder, under
any of the other Financing Agreements, or other applicable law, are
cumulative, not exclusive and enforceable, in Agent's and Lenders'
discretion, alternatively, successively, or concurrently on any one or more
occasions, and shall include, without limitation, the right to apply to a
court of equity for an injunction to restrain a breach or threatened breach
by Borrower of this Agreement or any of the other Financing Agreements.
(b) Without limiting the foregoing, at any time an Event of Default
exists or has occurred and is continuing, Agent may, in its discretion, and
at the direction of the Majority Lenders, without limitation, (i)
accelerate the payment of all Obligations and demand immediate payment
thereof to Lenders (provided, that, upon the occurrence of any Event of
Default described in Sections 11.1(g) and 11.1(h), all Obligations shall
automatically become immediately due and payable), and/or (ii) terminate
this Agreement.
SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
11.1 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND
THE OTHER FINANCING AGREEMENTS AND ANY DISPUTE ARISING OUT OF THE
RELATIONSHIP BETWEEN THE PARTIES HERETO, WHETHER IN CONTRACT, TORT, EQUITY
OR OTHERWISE, SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW).
(b) Each Borrower, Agent and each Lender irrevocably consent and
submit to the non-exclusive jurisdiction of the State of New York and the
United States District Court for the Southern District of New York and
waive any objection based on venue or forum non conveniens with respect to
any action instituted therein arising under this Agreement or any of the
other Financing Agreements or in any way
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connected with or related or incidental to the dealings of the parties
hereto in respect of this Agreement or any of the other Financing
Agreements or the transactions related hereto or thereto, in each case
whether now existing or hereafter arising, and whether in contract, tort,
equity or otherwise, and agree that any dispute with respect to any such
matters shall be heard only in the courts described above (except that
Agent and Lenders shall have the right to bring any action or proceeding
against any Borrower or its property in the courts of any other
jurisdiction which Agent and Lenders deem necessary or appropriate to
enforce their rights against such Borrower or its property).
(c) Each Borrower hereby waives personal service of any and all
process upon it and consents that all such service of process may be made
by certified mail (return receipt requested) directed to its address set
forth on the signature pages hereof with a copy to ▇▇▇▇▇, Hirshboeck &
▇▇▇▇▇ S.C. at its address set forth in Section 12.2 and service so made
shall be deemed to be completed five (5) days after the same shall have
been so deposited in the U.S. mails, or, at Agent's or any Lender's option,
by service upon such Borrower in any other manner provided under the rules
of any such courts.
(d) EACH BORROWER, AGENT AND EACH LENDER EACH HEREBY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i)
ARISING UNDER THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR
(ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER
FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE. BORROWERS, AGENT, AND LENDERS EACH HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT BORROWERS, AGENT OR
LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Neither Agent nor any Lender shall have any liability to any
Borrower (whether in tort, contract, equity or otherwise) for losses
suffered by such Borrower in connection with, arising out of, or in any way
related to the transactions or relationships contemplated by this
Agreement, or any act, omission or event occurring in connection herewith,
unless it is determined by a final and non-appealable judgment or court
order binding on Agent and Lenders, that the losses were the result of acts
or omissions constituting gross negligence or willful misconduct. In any
such litigation, Agent and Lenders shall be entitled to the benefit of the
rebuttable presumption that they acted in good faith and with the exercise
of ordinary care in the performance by them of the terms of this Agreement.
11.2 Waiver of Notices. Each Borrower hereby expressly waives demand,
presentment, protest and notice of protest and notice of dishonor with respect
to any and all instruments and commercial paper, included in or evidencing any
of the Obligations and any and all other demands and notices of any kind or
nature whatsoever with respect to the Obligations and this Agreement, except
such as are expressly provided for herein. No notice to or demand on any
Borrower which Agent or Lenders may elect to give shall entitle any Borrower to
any other or further notice or demand in the same, similar or other
circumstances.
11.3 Amendments and Waivers. Neither this Agreement nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of the
Agent and the Majority Lenders (or, all of the Lenders, as the case may be). The
Lenders shall not, by any act, delay, omission or otherwise be deemed to have
expressly or impliedly waived any of their rights, powers and/or remedies unless
such waiver shall be in writing and signed by an authorized officer of the Agent
and the Majority Lenders (or, all of the Lenders, as the case may be). Any such
waiver shall be enforceable only to the extent specifically set forth therein. A
waiver by the Agent or the Lenders of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such
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right, power and/or remedy which the Agent or the Lenders would otherwise have
on any future occasion, whether similar in kind or otherwise.
11.4 Waiver of Counterclaims. Each Borrower waives all rights to interpose
any claims, deductions, setoffs or counterclaims of any nature (other then
compulsory counterclaims) in any action or proceeding with respect to this
Agreement, the Obligations, the Collateral or any matter arising therefrom or
relating hereto or thereto.
11.5 Indemnification. EACH BORROWER SHALL INDEMNIFY AND HOLD AGENT AND EACH
LENDER, AND THEIR RESPECTIVE DIRECTORS, AGENTS, EMPLOYEES AND COUNSEL, HARMLESS
FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, COSTS OR
EXPENSES IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN CONNECTION
WITH ANY LITIGATION, INVESTIGATION, CLAIM OR PROCEEDING COMMENCED OR THREATENED
RELATED TO THE NEGOTIATION, PREPARATION, EXECUTION, DELIVERY, ENFORCEMENT,
PERFORMANCE OR ADMINISTRATION OF THIS AGREEMENT, ANY OTHER FINANCING AGREEMENTS,
OR ANY UNDERTAKING OR PROCEEDING RELATED TO ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR ANY ACT, OMISSION, EVENT OR TRANSACTION RELATED OR ATTENDANT THERETO,
INCLUDING, WITHOUT LIMITATION, AMOUNTS PAID IN SETTLEMENT, COURT COSTS, AND THE
FEES AND EXPENSES OF COUNSEL BUT EXCLUDING LOSSES, CLAIMS, DAMAGES, LIABILITIES,
COSTS OR EXPENSES CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AGENT,
LENDERS, THEIR RESPECTIVE DIRECTORS, AGENTS OR EMPLOYEES. TO THE EXTENT THAT THE
UNDERTAKING TO INDEMNIFY, PAY AND HOLD HARMLESS SET FORTH IN THIS SECTION MAY BE
UNENFORCEABLE BECAUSE IT VIOLATES ANY LAW OR PUBLIC POLICY, BORROWERS SHALL PAY
THE MAXIMUM PORTION WHICH IT IS PERMITTED TO PAY UNDER APPLICABLE LAW TO AGENT
AND LENDERS IN SATISFACTION OF INDEMNIFIED MATTERS UNDER THIS SECTION. THE
FOREGOING INDEMNITY SHALL SURVIVE THE PAYMENT OF THE OBLIGATIONS AND THE
TERMINATION OF THIS AGREEMENT.
11.6 No Immunity. To the extent that any Borrower may be or become
entitled, in any jurisdiction in which judicial proceedings may at any time be
commenced with respect to this Agreement or the Bridge Notes or any other
Financing Agreement, to claim for itself or its properties or revenues any
immunity from suit, court jurisdiction, attachment prior to judgment, attachment
in aid of execution of a judgment, execution of a judgment or from any other
legal process or remedy relating to its obligations under this Agreement or the
Bridge Notes or any other Financing Agreement, and to the extent that in any
such jurisdiction there may be attributed such an immunity (whether or not
claimed), such Borrower hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity to the fullest extent permitted by the laws of
such jurisdiction.
SECTION 12. TERM OF AGREEMENT; MISCELLANEOUS
12.1 Term.
(a) This Agreement and the other Financing Agreements shall become
effective as of the Effective Date and shall continue in full force and
effect for a term ending on the Maturity Date unless sooner terminated
pursuant to the terms hereof. Upon the effective date of termination of the
Financing Agreements, each Borrower shall pay to the Agent and the Lenders,
in full, all outstanding and unpaid Obligations.
(b) No termination of this Agreement or the other Financing Agreements
shall relieve or discharge any Borrower of its respective duties,
obligations and covenants under this Agreement or the other Financing
Agreements until all Obligations have been fully and finally discharged and
paid, and the rights and remedies of Agent and Lenders hereunder, under the
other Financing Agreements and applicable law, shall remain in effect until
all such Obligations have been fully and finally discharged and paid.
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12.2 Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Agent and each Lender at its address set forth below its
name on the signature pages hereof and to any Borrower at its chief executive
office set forth below its name on the signature pages hereof with a copy to
▇▇▇▇▇, Hirshboeck & ▇▇▇▇▇ S.C., Suite 2100, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., or to such other address as
either party may designate by written notice to the other in accordance with
this provision, and (b) deemed to have been given or made: if delivered in
person, immediately upon delivery; if by telex, telegram or facsimile
transmission, immediately upon sending and upon confirmation of receipt; if by
nationally recognized overnight courier service with instructions to deliver the
next business day, one (1) business day after sending; and if by certified mail,
return receipt requested, five (5) days after mailing.
12.3 Partial Invalidity. If any provision of this Agreement is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Agreement as a whole, but this Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
12.4 Successors. This Agreement, the other Financing Agreements and any
other document referred to herein or therein shall be binding upon and inure to
the benefit of and be enforceable by the Agent, Lenders, any Borrower and their
respective successors and assigns, except that no Borrower may assign its rights
under this Agreement, the other Financing Agreements and any other document
referred to herein or therein without the prior written consent of the Agent and
the Majority Lenders. Any Lender may with the consent of the Agent and, after
notice to Borrower, assign its rights and delegate its obligations under this
Agreement and the other Financing Agreements and further may assign, or sell
participations in, all or any part of the Bridge Loans or any other interest
herein to another financial institution or other person, in which event, the
assignee or participant shall have, to the extent of such assignment or
participation, the same rights and benefits as it would have if it were the
Lenders hereunder, except as otherwise provided by the terms of such assignment
or participation.
12.5 Entire Agreement. This Agreement, the other Financing Agreements, any
supplements hereto or thereto, and any instruments or documents delivered or to
be delivered in connection herewith or therewith represents the entire agreement
and understanding concerning the subject matter hereof and thereof between the
parties hereto, and supersede all other prior agreements, understandings,
negotiations and discussions, representations, warranties, commitments,
proposals, offers and contracts concerning the subject matter hereof, whether
oral or written.
IN WITNESS WHEREOF, the Agent, Lenders and the Borrowers have caused these
presents to be duly executed as of the day and year first above written.
BORROWERS:
BUCYRUS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. SMOKE
--------------------------------------
Title: Vice President -- Finance and
Chief Financial Officer
Address:
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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BUCYRUS (AUSTRALIA)
PROPRIETARY LTD.
By: /s/ ▇▇▇▇▇▇ ▇. SMOKE
--------------------------------------
Title: Assistant Secretary
Address:
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BUCYRUS CANADA LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. SMOKE
--------------------------------------
Title: Secretary
Address:
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Bridge Loan Commitment LENDER
$40,000,000 PPM AMERICA SPECIAL
INVESTMENTS FUND, L.P.
Commitment Percentage: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
.88888888% --------------------------------------
Title: Managing Director
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bridge Loan Commitment: BANK OF MONTREAL
$5,000,000
Commitment Percentage: By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
.11111111% --------------------------------------
Title: Senior Trader
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AGENT
PPM AMERICA SPECIAL
INVESTMENTS FUND, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Managing Director
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS................................................. 1
SECTION 2. CREDIT FACILITIES........................................... 5
2.1 Bridge Loans................................................ 5
2.2 Mandatory Prepayments....................................... 6
SECTION 3. INTEREST AND FEES........................................... 6
3.1 Interest.................................................... 6
3.2 Maintenance Fee............................................. 7
3.3 Late Fee.................................................... 7
SECTION 4. PAYMENTS; PRO RATA TREATMENT; INCREASED COSTS, ETC.......... 7
4.2 Pro Rata Treatment.......................................... 8
4.3 Sharing of Payments......................................... 8
4.4 Changes in Laws; Increased Costs of Loans; U.S. Taxes....... 9
SECTION 5. CONDITIONS PRECEDENT........................................ 9
5.1 Conditions Precedent to Bridge Loans........................ 9
5.2 Conditions Precedent to the Bridge Loans.................... 11
SECTION 6. COLLECTION AND ADMINISTRATION; JOINT SEVERALABILITY; RIGHTS
OF CONTRIBUTION............................................. 11
6.1 Payments.................................................... 11
6.2 Authorization to Make Loans................................. 11
6.3 Use of Proceeds............................................. 11
6.4 Limitation on Obligations................................... 11
6.5 Guaranty.................................................... 11
SECTION 7. AGENT....................................................... 13
7.1 Appointment, Powers and Immunities.......................... 13
7.2 Reliance by Agent........................................... 13
7.3 Defaults.................................................... 13
7.4 Rights as a Lender.......................................... 13
7.5 Indemnification............................................. 14
7.6 Non-Reliance on Agent and Other Lenders..................... 14
7.7 Failure to Act.............................................. 14
7.8 Resignation or Removal of Agent............................. 14
7.9 Settlement with Lenders..................................... 14
7.10 Return of Payments.......................................... 14
SECTION 8. REPRESENTATIONS AND WARRANTIES.............................. 15
8.1 Corporate Existence, Power and Authority; Subsidiaries...... 15
8.2 Financial Statements; No Material Adverse Change............ 15
8.3 Tax Returns................................................. 15
8.4 Litigation.................................................. 15
8.5 Compliance with Other Agreements and Applicable Laws........ 15
8.6 Employee Benefits........................................... 16
8.7 Acquisition of Purchased Assets............................. 16
8.9 Accuracy and Completeness of Information.................... 17
8.10 Approvals................................................... 17
8.11 Survival of Warranties; Cumulative.......................... 17
SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS.......................... 17
9.1 Maintenance of Existence.................................... 17
9.2 Compliance with Laws, Regulations, Etc...................... 17
9.3 Payment of Taxes and Claims................................. 17
9.4 Financial Statements and Other Information.................. 18
9.5 Sale of Assets, Consolidation, Merger, Dissolution, Etc..... 18
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PAGE
----
9.6 Encumbrances................................................ 18
9.7 Indebtedness................................................ 18
9.8 Loans, Investments, Guarantees, Etc......................... 19
9.9 Dividends and Redemptions................................... 20
9.10 Transactions with Affiliates................................ 20
9.11 Compliance with ERISA....................................... 20
9.12 Costs and Expenses.......................................... 20
9.13 Capital Expenditures........................................ 21
SECTION 10. EVENTS OF DEFAULT AND REMEDIES.............................. 21
10.1 Events of Default........................................... 21
10.2 Remedies.................................................... 22
SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING
LAW......................................................... 22
11.1 Governing Law; Choice of Forum; Service of Process; Jury
Trial Waiver................................................ 22
11.2 Waiver of Notices........................................... 23
11.3 Amendments and Waivers...................................... 23
11.4 Waiver of Counterclaims..................................... 23
11.5 Indemnification............................................. 23
11.6 No Immunity................................................. 23
SECTION 12. TERM OF AGREEMENT; MISCELLANEOUS............................ 24
12.1 Term........................................................ 24
12.2 Notices..................................................... 25
12.3 Partial Invalidity.......................................... 25
12.4 Successors.................................................. 25
12.5 Entire Agreement............................................ 25
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