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EXHIBIT 10.1
LOAN AGREEMENT
by and among
▇▇▇▇▇▇▇▇ INTERNATIONAL CORPORATION
and
THE BANKS PARTY HERETO,
CITIZENS BANK OF PENNSYLVANIA, as Agent
and
PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent
DATED DECEMBER 3, 2001
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TABLE OF CONTENTS
SECTION
ARTICLE I DEFINITIONS
1.01 Certain Definitions.
1.02 Construction and Interpretation.
ARTICLE II THE CREDIT FACILITIES
2.01 Revolving Credit Facility Commitment.
2.02 Swing Line Loan Facility.
2.03 Interest Rates.
2.04 Interest Payments.
2.05 Fees.
2.06 Agreement to Issue Letters of Credit.
2.07 Letter of Credit Fees.
2.08 Payments Under Letters of Credit.
2.09 Period of Issuance and Term of Letters of Credit.
2.10 Booking of Libor Rate Loans.
2.11 Assumptions Concerning Funding of Libor Rate Loans.
2.12 Additional Costs.
2.13 Illegality; Impracticability.
2.14 Payments.
2.15 Loan Account.
2.16 Estoppel.
ARTICLE III REPRESENTATIONS AND WARRANTIES
3.01 Organization and Qualification.
3.02 Authority; Power to Carry on Business; Licenses.
3.03 Execution and Binding Effect.
3.04 Absence of Conflicts.
3.05 Authorizations and Filings.
3.06 Title to Property.
3.07 Financial Information.
3.08 Taxes.
3.09 Contracts.
3.10 Litigation.
3.11 Laws.
3.12 ERISA.
3.13 Patents, Licenses, Franchises.
3.14 Environmental Matters.
3.15 Use of Proceeds.
3.16 Margin Stock.
3.17 No Event of Default; Compliance with Agreements.
3.18 No Material Adverse Change.
3.19 Labor Controversies.
3.20 Solvency.
3.21 Subsidiaries.
3.22 Governmental Regulation.
3.23 Accurate and Complete Disclosure; Continuing Representations and
Warranties.
ARTICLE IV CONDITIONS OF LENDING
4.01 Representations and Warranties; Events of Default and Potential
Defaults.
4.02 Loan Documents.
4.03 Other Documents and Conditions.
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4.04 Details, Proceedings and Documents.
4.05 Fees and Expenses.
ARTICLE V AFFIRMATIVE COVENANTS
5.01 Reporting and Information Requirements.
5.02 Preservation of Existence and Franchises.
5.03 Insurance.
5.04 Maintenance of Properties.
5.05 Payment of Liabilities.
5.06 Financial Accounting Practices.
5.07 Compliance with Laws.
5.08 Pension Plans.
5.09 Continuation of and Change in Business.
5.10 Use of Proceeds.
5.11 Lien Searches.
5.12 Further Assurances.
5.13 Amendment to Schedules and Representations and Warranties.
5.14 Acquisitions.
5.15 Financial Covenants.
5.16 Subsidiary Guaranty Agreements.
ARTICLE VI NEGATIVE COVENANTS
6.01 Liens.
6.02 Indebtedness.
6.03 Guarantees and Contingent Liabilities.
6.04 Loans and Investments.
6.05 Acquisitions.
6.06 Self-Dealing.
6.07 Disposition of Assets.
6.08 Margin Stock.
6.09 Partnerships; Mergers or Consolidation.
6.10 Double Negative Pledge.
6.11 Fiscal Year; Tax Designation.
ARTICLE VII DEFAULTS
7.01 Events of Default.
7.02 Consequences of an Event of Default.
7.03 Set-Off.
7.04 Equalization.
7.05 Other Remedies.
ARTICLE VIII THE AGENT; THE DOCUMENTATION AGENT; ASSIGNMENTS;
PARTICIPATIONS
8.01 Appointment and Authorization; No Liability.
8.02 Employees and Agents; Documentation Agent.
8.03 No Representations; Each Bank's Independent Investigation.
8.04 Payments to Banks.
8.05 Note Holders.
8.06 Documents.
8.07 Agents and Affiliates.
8.08 Indemnification of Agent.
8.09 Successor Agent.
8.10 Knowledge of Default.
8.11 Action by Agent.
8.12 Notification of Potential Defaults and Events of Defaults.
8.13 Declaration of Invalidation.
8.14 Pro Rata Portion, Pari Passu and Equal.
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8.15 Cooperation.
8.16 Obligations Several.
8.17 Bank Assignments/Participations.
ARTICLE IX MISCELLANEOUS
9.01 Business Days.
9.02 Amendments and Waivers.
9.03 No Implied Waiver: Cumulative Remedies.
9.04 Notices.
9.05 Expenses; Taxes; Attorneys Fees.
9.06 Severability.
9.07 Governing Law: Consent to Jurisdiction.
9.08 Prior Understandings.
9.09 Duration; Survival.
9.10 Counterparts.
9.11 Successors and Assigns.
9.12 No Third Party Beneficiaries.
9.13 Exhibits.
9.14 Headings.
9.15 Limitation of Liability.
9.16 Indemnities.
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LOAN AGREEMENT
Agreement, dated the 3rd day of December, 2001, by and among ▇▇▇▇▇▇▇▇
International Corporation, a Pennsylvania corporation (the "Borrower"), the
Banks (as hereinafter defined), Citizens Bank of Pennsylvania, a Pennsylvania
banking institution, in its capacity as agent for the Banks (in such capacity,
the "Agent"), and PNC Bank, National Association, a national banking
association, in its capacity as documentation agent for the Banks (in such
capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Banks extend credit to the
Borrower pursuant to a revolving credit facility in an aggregate principal
amount not to exceed One Hundred Twenty Five Million and 00/100 Dollars
($125,000,000.00), the proceeds of which will be used (i) to repay certain
existing indebtedness of the Borrower, including amounts due under the Prior
Loan Agreement (as hereinafter defined), (ii) for general corporate and
working capital purposes and (iii) for Acquisitions (as hereinafter defined);
and
WHEREAS, the Borrower has requested that Citizens (as hereinafter defined)
extend credit to the Borrower pursuant to a swing line facility in an
aggregate principal amount not to exceed Ten Million and 00/100 Dollars
($10,000,000.00), the proceeds of which will be used for general corporate and
working capital purposes; and
WHEREAS, the Banks are willing to extend such credit to the Borrower pursuant
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
contained in this Agreement, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions.
In addition to other words and terms defined elsewhere in this Agreement, the
following words and terms have the following meanings, respectively, unless
the context otherwise clearly requires:
"Acquisition" shall mean any transaction or series of related transactions for
the purpose of or resulting, directly or indirectly, in (a) the acquisition of
all or substantially all of the assets of any Person, or any business or
division of any Person, (b) the acquisition of in excess of fifty percent
(50%) of the capital stock (or other equity interest) of any Person, or (c)
the acquisition of another Person by a merger or consolidation or any other
combination with such Person.
"Advantage" shall mean any payment (whether made voluntarily or involuntarily
by offset of any deposit or other Indebtedness or otherwise) received by any
Bank in respect of the Indebtedness evidenced by the Notes, if such payment
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results in that Bank having less than its Pro Rata Share of the Indebtedness
to the Banks pursuant to this Agreement than was the case immediately before
such payment.
"Affiliate" shall mean, with respect to any Loan Party hereto, any Person that
directly or indirectly controls, is controlled by or is under common control
with such Loan Party. The term "control" shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.
"Agent" shall mean Citizens and its successors and assigns.
"Agreement" shall mean this Agreement, as amended, modified or supplemented
from time to time.
"Applicable Commitment Fee Percentage" shall mean that as set forth in Section
2.05(i) hereof.
"Applicable L/C Fee Percentage" shall mean that as set forth in Section 2.07
hereof.
"Applicable Libor Margin" shall mean that as set forth in Section 2.03(a)(ii)
hereof.
"Applicable Margin" shall mean the Applicable Libor Margin or the Applicable
Prime Margin, as the case may be.
"Applicable Prime Margin" shall mean that as set forth in Section 2.03(a)(ii)
hereof.
"Applicable Rate" shall mean, as of the date of determination, the Prime Rate
plus the Applicable Prime Margin, the Libor Rate plus the Applicable Libor
Margin or the Swing Line Rate, as the case may be.
"Assignment Agreement" shall mean that as set forth in Section 8.17(A)(iv)
hereof.
"Authorized Representative" shall mean each Person designated from time to
time, as appropriate, in writing by the Borrower to the Agent for the purposes
of giving notices of borrowing, conversion or renewal of Loans, which
designation shall continue in force and effect until terminated in writing by
the Borrower to the Agent.
"Bank" or "Banks" shall mean, singularly or collectively as the context may
require, the financial institutions listed on the signature pages hereof and
their respective successors and Eligible Assignees.
"Borrower" shall mean as set forth in the preamble hereof.
"Business Day" shall mean a day of the year on which banks are not required or
authorized to close in Pittsburgh, Pennsylvania and, if the applicable
Business Day relates to a Libor Rate Loan, on which dealings are carried on in
the London interbank eurodollar market.
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"Capital Expenditure" shall mean any expenditure made or liability incurred
which is, in accordance with GAAP, treated as a capital expenditure and not as
an expense item for the year in which it was made or incurred, as the case may
be.
"Capital Lease" shall mean any lease of any tangible or intangible property
(whether real, personal or mixed), however denoted, which is required by GAAP
to be reflected as a liability on the balance sheet of the lessee.
"Capitalized Lease Obligation" shall mean, with respect to each Capital Lease,
the amount of the liability reflecting the aggregate discounted amount of
future payments under such Capital Lease calculated in accordance with GAAP,
statement of financial accounting standards No. 13 (as supplemented and
modified from time to time), and any corresponding future interpretations by
the Financial Accounting Standards Board or any successor thereto.
"Cash Equivalents" shall mean: (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States,
in each case maturing within six (6) months from the date of acquisition
thereof; (b) commercial paper maturing no more than six (6) months from the
date issued and, at the time of acquisition, having a rating of at least A-1
from Standard & Poor's Corporation or at least P-1 from ▇▇▇▇▇'▇ Investors
Service, Inc.; and (c) certificates of deposits or bankers' acceptances
maturing within six (6) months from the date of issuance thereof issued by, or
overnight reverse repurchase agreements from any commercial bank organized
under the laws of the United States of America, or any state thereof or the
District of Columbia, having combined capital and surplus of not less than Two
Hundred Fifty Million and 00/100 Dollars ($250,000,000.00) and not subject to
setoff rights in favor of such bank.
"Change of Control" shall mean (i) any Person or group within the meaning of
Rule 13d-5 under the Securities Exchange Act of 1934, as amended, as in effect
on the date of this Agreement, has become the owner of, directly or
indirectly, beneficially or of record, shares representing more than thirty-
five percent (35%) of the aggregate ordinary voting power represented by the
issued and outstanding capital stock of the Borrower, or (ii) during any
period of twelve (12) consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period, together with
individuals elected as directors by not less than a majority of the
individuals who were directors of the Borrower on the first (1st) day of such
period, shall cease to consist of at least sixty percent (60%) of the total
number of directors of the Borrower.
"Citizens" shall mean Citizens Bank of Pennsylvania, a Pennsylvania banking
institution.
"Closing" shall mean the closing of the transactions provided for in this
Agreement on the Closing Date.
"Closing Date" shall mean December 3, 2001 or such other date upon which the
parties may agree.
"Code" shall mean the Internal Revenue Code of 1986 as amended, along with the
rules, regulations, decisions and other official interpretations in connection
therewith.
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"Commercial Letter of Credit" shall mean any letter of credit which is a
commercial letter of credit issued in respect of the purchase of goods or
services by the Borrower in the ordinary course of its business.
"Commitment" shall mean, with respect to each Bank, the amount set forth on
Schedule 1 attached hereto and made a part hereof as the amount of each Bank's
commitment to make Revolving Credit Loans and participate in the issuance of
Letters of Credit, as such amount may be modified from time to time pursuant
to Section 8.17(A) hereof. Schedule 1 shall be amended from time to time to
reflect modifications pursuant to Section 8.17(A) and any other changes to the
Commitment of the Banks.
"Commitment Percentage" shall mean, with respect to each Bank, the percentage
set forth on Schedule 1 attached hereto and made a part hereof as such Bank's
percentage of the aggregate Commitments of all of the Banks, as such
percentage may be changed from time to time in accordance with the terms and
conditions of this Agreement. Schedule 1 shall be amended from time to time
to reflect any changes to the Commitment Percentages.
"Contamination" shall mean the presence or release or threat of release of
Regulated Substances in, on, under or emanating to or from the ▇▇▇▇▇▇▇▇
Property or the York Group Property, as the case may be, which pursuant to
Environmental Laws requires notification or reporting to an Official Body, or
which pursuant to Environmental Laws requires the investigation, cleanup,
removal, remediation, containment, abatement of or other response action or
which otherwise constitutes a violation of Environmental Laws.
"Consolidated" shall mean the resulting consolidation of the financial
statements of the Borrower and its Subsidiaries in accordance with GAAP,
including principles of consolidation consistent with those applied in
preparation of the Consolidated financial statements provided to the Agent and
the Banks prior to the Closing Date.
"Distributions" shall mean, for the period of determination, (a) all
distributions of cash, securities or other property (other than capital stock)
on or in respect of any shares of any class of capital stock of the Borrower
and (b) all purchases, redemptions or other acquisitions by the Borrower of
any shares of any class of capital stock of the Borrower, in each case
determined and Consolidated for the Borrower and its Subsidiaries in
accordance with GAAP.
"Documentation Agent" shall mean PNC and its successors and assigns.
"Domestic Subsidiary" shall mean a Subsidiary organized under the laws of any
state of the United States; provided, however, that with respect to the
representations and warranties set forth in Article III hereof only, York
Group Parties shall be excluded from the term "Domestic Subsidiary."
"EBITDA" shall mean, for the period of determination, (i) Net Income, plus
(ii) Interest Expense, plus (iii) all income taxes included in Net Income,
plus (iv) depreciation, depletion, amortization, and all other non-cash
expenses included in Net Income, in each case determined and Consolidated for
the Borrower and its Subsidiaries in accordance with GAAP. For the purposes
of the first twelve months of this Agreement, the calculation of EBITDA shall
include the projected EBITDA for York Group as provided to the Banks prior to
the Closing Date; provided that at the close of each calendar quarter during
such twelve month period, the actual EBITDA for York Group shall be
substituted for such projected EBITDA.
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"EBIT" shall mean, for the period of determination, (i) Net Income, plus (ii)
Interest Expense, plus (iii) all income taxes included in Net Income, in each
case determined and Consolidated for the Borrower and its Subsidiaries in
accordance with GAAP.
"Eligible Assignee" shall mean any commercial bank or non-bank financial
institution organized under the United States of America or any state thereof
including, without limitation, any insurance company, savings bank or savings
and loan association, having total assets in excess of One Billion and 00/100
Dollars ($1,000,000,000.00).
"Environmental Complaint" shall mean any written complaint by any Person or
Official Body setting forth a cause of action for personal injury or property
damage, natural resource damage, contribution or indemnity for response costs,
civil or administrative penalties, criminal fines or penalties, or declaratory
or equitable relief arising under any Environmental Laws or any order, notice
of violation, citation, subpoena, request for information or other written
notice or demand of any type issued by an Official Body pursuant to any
Environmental Laws.
"Environmental Laws" shall mean all federal, state, local and foreign Laws and
any consent decrees, settlement agreements, judgments, orders, directives,
policies or programs issued by or entered into with an Official Body
pertaining or relating to: (i) pollution or pollution control; (ii) protection
of human health or the environment; (iii) employee safety in the workplace;
(iv) the presence, use, management, generation, manufacture, processing,
extraction, treatment, recycling, refining, reclamation, labeling, transport,
storage, collection, distribution, disposal or release or threat of release of
Regulated Substances; (v) the presence of Contamination; (vi) the protection
of endangered or threatened species; and (vii) the protection of
Environmentally Sensitive Areas.
"Environmentally Sensitive Area" shall mean (i) any wetland as defined by
applicable Environmental Laws; (ii) any area designated as a coastal zone
pursuant to applicable Laws, including Environmental Laws; (iii) any area of
historic or archeological significance or scenic area as defined or designated
by applicable Laws, including Environmental Laws; (iv) habitats of endangered
species or threatened species as designated by applicable Laws, including
Environmental Laws; or (v) a floodplain or other flood hazard area as defined
pursuant to any applicable Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as in
effect as of the date of this Agreement and as amended from time to time in
the future, and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.
"ERISA Affiliate" shall mean a Person which is under common control with the
Borrower within the meaning of Section 414(b) of the Code including, but not
limited to, a Subsidiary of the Borrower.
"Event of Default" shall mean any of the Events of Default described in
Section 7.01 of this Agreement.
"Excess Amount" shall mean that as set forth in Section 2.01(d) hereof.
"Excess Interest" shall mean that as set forth in Section 2.03(c) hereof.
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"Existing Letters of Credit" shall mean that as set forth in Section 2.06
hereof.
"Expiry Date" shall mean November 30, 2004 or such earlier date on which the
Revolving Credit Facility Commitment shall have been terminated pursuant to
this Agreement.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upward to the next higher whole multiple of 1/100% if such rate is not such a
multiple) equal to the weighted average of the rates on overnight federal
funds transactions arranged by federal funds brokers on such day (or if there
is no trading in such funds on such day on the previous trading day) as such
rate is computed and announced on the next Business Day following such trading
day by the Federal Reserve Bank of New York (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "federal funds effective
rate" as of the date of this Agreement; provided, however, if such Federal
Reserve Bank (or its successor) does not announce such rate for any day, the
Federal Funds Rate for such day shall be the Federal Funds Rate for the last
day on which such rate was announced.
"Fiscal Quarter(s)" shall mean the period(s) of October 1 through December 31,
January 1 through March 31, April 1 through June 30, and July 1 through
September 30 of each calendar year.
"Fixed Charge Coverage Ratio" shall mean, for the period of determination, the
ratio of (a) the difference between (i) EBITDA, minus (ii) Capital
Expenditures, minus (iii) all income taxes included in Net Income to (b) Fixed
Charges.
"Fixed Charges" shall mean, for the period of determination, the sum of (i)
Interest Expense, plus (ii) scheduled principal installments on Indebtedness
(as adjusted for prepayments), plus (iii) Distributions, in each case
determined and Consolidated for the Borrower and its Subsidiaries in
accordance with GAAP.
"Form 10-K" shall mean that as set forth in Section 5.09 hereof.
"GAAP" shall mean generally accepted accounting principles (as such principles
may change from time to time), which shall include the official
interpretations thereof by the Financial Accounting Standards Board, applied
on a consistent basis.
"Guarantor" or "Guarantors" shall mean, singularly or collectively, as the
context may require, IEEC, MIAC, YBTC, York Group and any other person that
executes and delivers a Guaranty Agreement to the Agent for the ratable
benefit of the Banks on or after the date hereof.
"Guaranty" shall mean any obligation of a Person guaranteeing or in effect
guaranteeing any liability or obligation of any other Person in any manner,
whether directly or indirectly, including any agreement to indemnify or hold
harmless any other Person, any performance bond or other suretyship
arrangement and any other form of assurance against loss, except endorsement
of negotiable or other instruments for deposit or collection in the ordinary
course of business.
▇▇
"▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇" ▇▇ "▇▇▇▇▇▇▇▇ Agreements" shall mean, singularly or
collectively, as the context may require, the IEEC Guaranty, the MIAC
Guaranty, the YBTC Guaranty, the York Group Guaranty, and any other Guaranty
and Suretyship Agreement executed and delivered to the Agent for the ratable
benefit of the Banks on or after the date hereof substantially in the form of
Exhibit "E" attached hereto and made a part hereof.
"IEEC" shall mean Industrial Equipment and Engineering Company, Inc., a
Delaware corporation.
"IEEC Guaranty" shall mean the Guaranty Agreement, dated of even date
herewith, executed and delivered by IEEC to the Agent for the ratable benefit
of the Banks, as amended, modified or supplemented from time to time.
"Incentive Pricing Effective Date" shall mean that as set forth in
Section 2.03(a)(ii) hereof.
"Indebtedness" shall mean, as to any Person at any time, (i) all obligations
for borrowed money, direct or indirect, incurred, assumed, or guaranteed
(including, without limitation, all notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or similar instruments, all obligations on which interest
charges are customarily paid, all obligations under conditional sale or other
title retention agreements, all obligations for the deferred purchase price of
capital assets and all obligations issued or assumed as full or partial
payment for property), (ii) all obligations secured by any Lien existing on
property owned or acquired subject thereto, whether or not the obligations
secured thereby shall have been assumed, (iii) all reimbursement obligations
(contingent or otherwise), (iv) all Indebtedness represented by obligations
under a Capital Lease and the amount of such Indebtedness shall be the
aggregate Capitalized Lease Obligations with respect to such Capital Lease,
(v) all obligations (contingent or otherwise) under any letter of credit,
banker's acceptance, Guaranty, indemnification agreement or interest rate
protection agreement, (vi) all obligations to advance funds to, or to purchase
assets, property or services from, any other Person in order to maintain the
financial condition of such Person and (vii) any other transaction (including
forward sale or purchase agreements) having the commercial effect of a
borrowing of money entered into by such Person to finance its operations or
capital requirements.
"Indemnitees" shall mean that as set forth in Section 9.16 hereof.
"Indemnified Liabilities" shall mean that as set forth in Section 9.16 hereof.
"Interest Coverage Ratio" shall mean, as of the date of determination, the
ratio of (i) EBIT to (ii) Interest Expense.
"Interest Expense" shall mean, for the period of determination, all interest
accruing during such period on Indebtedness, including, without limitation,
all interest required under GAAP to be capitalized during such period, in each
case determined and Consolidated for the Borrower and its Subsidiaries in
accordance with GAAP.
"Interest Period" shall mean, with respect to any Libor Rate Loan, the period
commencing on the date such Loan is made as, renewed as or converted into a
Libor Rate Loan and ending on the last day of such period as selected by the
Borrower pursuant to the provisions below and, thereafter, each subsequent
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period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of such period, as selected by the Borrower
pursuant to the provisions below. The duration of each Interest Period for
any Libor Rate Loan shall be for any number of Months selected by the Borrower
upon notice as set forth in Section 2.01(c), provided that:
(i) the Interest Period for any Libor Rate Loan shall be one (1), two (2),
three (3), six (6) or twelve (12) Months or such other period as may be agreed
upon by the Borrower and the Banks;
(ii) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall
occur on the next succeeding Business Day, provided that if such extension of
time would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the last Business Day immediately preceding the last day of such Interest
Period;
(iii) if the Borrower renews any Libor Rate Loan for an additional Interest
Period, the first day of the new Interest Period shall be the last day of the
preceding Interest Period; however, interest shall only be charged once for
such day at the rate applicable to the Libor Rate Loan for the new Interest
Period;
(iv) if the Borrower fails to so select the duration of any Interest Period,
the duration of such Interest Period shall be one (1) Month; and
(v) the last day of any Interest Period shall not occur after the Expiry Date.
"Law" shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award
of any Official Body.
"Letter of Credit" or "Letters of Credit" shall mean, singularly or
collectively as the context may require, the letters of credit issued in
accordance with Section 2.06 hereof.
"Letter of Credit Commission" shall mean that as set forth in Section 2.07
hereof.
"Letter of Credit Face Amount" shall mean, for each Letter of Credit, the face
amount of such Letter of Credit.
"Letter of Credit Related Documents" shall mean any agreements or instruments
relating to a Letter of Credit.
"Letter of Credit Reserve" shall mean, at any time, an amount equal to (a) the
aggregate Letters of Credit Outstanding at such time plus, without
duplication, (b) the aggregate amount theretofore paid by the issuer under the
Letters of Credit and not debited to the Borrower's account or otherwise
reimbursed by the Borrower.
"Letters of Credit Outstanding" shall mean, at any time, the maximum amount
available to be drawn at such time under all then outstanding Letters of
Credit, including any amounts drawn thereunder and not reimbursed, regardless
of the existence or satisfaction of any conditions or limitations on drawing.
"Leverage Ratio" shall mean, as of the date of determination, the ratio of (i)
Net Indebtedness to (ii) EBITDA.
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"Libor Rate" shall mean, for any Interest Period, a fixed rate per annum
(rounded upwards to the next higher whole multiple of 1/100% if such rate is
not such a multiple) equal at all times during such Interest Period to the
quotient of (a) the rate per annum determined in good faith by the Agent in
accordance with its customary procedures (which determination shall be
conclusive absent manifest error) to be the average of the rates per annum
(rounded upwards to the next higher whole multiple of 1/100% if such rate is
not such a multiple) at which deposits in immediately available United States
Dollars are offered at 11:00 a.m. (London, England time) (or as soon
thereafter as is reasonably practicable) to major money center banks by prime
banks in the London interbank eurodollar market three (3) Business Days prior
to the first day of such Interest Period in an amount and maturity equal to
the amount and maturity of such Libor Rate Loan, divided by (b) a number equal
to 1.00 minus the aggregate (without duplication) of the rates (expressed as a
decimal fraction) of the Libor Reserve Requirements.
"Libor Rate Loan" shall mean any Revolving Credit Loan that bears interest
with reference to the Libor Rate.
"Libor Reserve Requirements" shall mean, for any day of any Interest Period
for a Libor Rate Loan, the percentage (rounded upward to the next higher whole
multiple of 1/100% if such rate is not such a multiple) as determined in good
faith by the Agent in accordance with its customary procedures (which
determination shall be conclusive absent manifest error) as representing the
maximum reserves (whether basic, supplemental, marginal, emergency or
otherwise) prescribed by the Board of Governors of the Federal Reserve System
(or any successor) with respect to liabilities or assets consisting of or
including "Eurocurrency Liabilities" (as defined in Regulation D of the Board
of Governors of the Federal Reserve System) in an amount and for a maturity
equal to such Libor Rate Loan and such Interest Period. The Libor Rate shall
be adjusted automatically as of the effective date of each change in the Libor
Reserve Requirements.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
including, but not limited to, any conditional sale or title retention
arrangement, and any assignment, deposit arrangement (other than escrow
deposits) or lease intended as, or having the effect of, security for
Indebtedness.
"Loan" or "Loans" shall mean, singularly or collectively as the context may
require, the Revolving Credit Loans, the Swing Line Loans and any other credit
to the Borrower extended by any Bank in accordance with Article II hereof as
evidenced by the Notes, as the case may be.
"Loan Account" shall mean that as set forth in Section 2.15 hereof.
"Loan Document" or "Loan Documents" shall mean, singularly or collectively as
the context may require, (i) this Agreement, (ii) the Notes, (iii) the Notice
of Waiver of Rights, (iv) the Guaranty Agreements, (v) the Letters of Credit,
(vi) the Letter of Credit Related Documents and (vii) any and all other
documents, instruments, certificates and agreements executed and delivered in
connection with this Agreement, as any of them may be amended, modified,
extended or supplemented from time to time.
"Loan Party" or "Loan Parties" shall mean singularly or collectively, as the
context may require, the Borrower and the Guarantors.
14
"Majority Banks" shall mean, (i) if there are no Revolving Credit Loans
outstanding or Letters of Credit Outstanding, any group of Banks constituting
the majority of the total number of Banks whose Commitment Percentages
aggregate at least fifty-one percent (51%) of the Total Commitment Amount or,
(ii) if there are Revolving Credit Loans outstanding and/or Letters of Credit
Outstanding, any group of Banks constituting the majority of the total number
of Banks if the sum of the Revolving Credit Loans outstanding and Letters of
Credit Outstanding of such Bank or Banks aggregates at least fifty-one percent
(51%) of the total principal amount of all of such Revolving Credit Loans and
Letters of Credit Outstanding.
"Material Adverse Change" shall mean a material adverse change in the (a)
business, operations or condition (financial or otherwise) of the Loan Parties
and their Subsidiaries taken as a whole; (b) the ability (other than financial
ability) of any Loan Party to perform any of its payment or other obligations
under this Agreement or any of the other Loan Documents to which it is a
party; or (c) the legality, validity, or enforceability of the obligations of
any Loan Party under this Agreement or any of the other Loan Documents.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations or condition (financial or otherwise) of the Loan Parties
and their Subsidiaries taken as a whole; (b) the ability (other than financial
ability) of any Loan Party to perform any of its payment or other obligations
under this Agreement or any of the other Loan Documents to which it is a
party; or (c) the legality, validity, or enforceability of the obligations of
any Loan Party under this Agreement or any of the other Loan Documents.
"▇▇▇▇▇▇▇▇ Loan Party" shall mean each Loan Party other than York Group.
"▇▇▇▇▇▇▇▇ Property" shall mean all real property, both owned and leased, of
any ▇▇▇▇▇▇▇▇ Loan Party or Domestic Subsidiary of a ▇▇▇▇▇▇▇▇ Loan Party.
"Maximum Rate" shall mean that as set forth in Section 2.03(c) hereof.
"Measurement Quarter" shall mean that as set forth in Section 2.03(a)(ii)
hereof.
"MIAC" shall mean ▇▇▇▇▇▇▇▇ International (Arkansas) Corporation, an Arkansas
corporation.
"MIAC Guaranty" shall mean the Guaranty Agreement, dated of even date
herewith, executed and delivered by MIAC to the Agent for the ratable benefit
of the Banks, as amended, modified or supplemented from time to time.
"Month" shall mean with respect to an Interest Period, the interval between
the days in consecutive calendar months numerically corresponding to the first
(1st) day of such Interest Period. If any Interest Period begins on a day of
a calendar month for which there is no numerically corresponding day in the
month in which such Interest Period is to end, the final month of such
Interest Period shall be deemed to end on the last Business Day of such final
month.
"Net Income" shall mean, for the period of determination, net income (after
taxes), excluding, however, extraordinary gains, in each case determined and
Consolidated for the Borrower and its Subsidiaries in accordance with GAAP.
15
"Net Indebtedness" shall mean (a) Indebtedness minus (b) (i) cash plus (ii)
Cash Equivalents minus (iii) Five Million and 00/100 Dollars ($5,000,000.00),
in each case determined and Consolidated for the Borrower and its Subsidiaries
in accordance with GAAP; provided, however, for purposes of this calculation,
the definition of Cash Equivalents shall include marketable securities held by
Venetian Investment Corp., a Delaware corporation and a Domestic Subsidiary of
the Borrower, in its money market fund (account number 35542-1) and its short
term bond fund (account number 35542-0).
"Net Worth" means, as of the date of determination, net worth, in each case
determined for the Borrower and its Subsidiaries in accordance with GAAP.
"Note" or "Notes" shall mean, singularly or collectively as the context may
require, the Revolving Credit Notes, the Swing Line Note and any other note of
the Borrower executed and delivered pursuant to this Agreement, as any such
note may be amended, modified or supplemented from time to time, together with
all extensions, renewals, refinancings or refundings in whole or in part.
"Notice of Waiver of Rights" shall mean the Notice of Waiver of Rights
Regarding Warrants of Attorney, Execution Rights and Waiver of Rights to Prior
Notice and Judicial Hearing, dated of even date herewith, made by the Loan
Parties to the Agent, as amended, modified or supplemented from time to time.
"Notices" shall mean that as set forth in Section 9.04 hereof.
"Office", when used in connection with (i) Citizens or the Agent, shall mean
its designated office located at Two Mellon Bank Center, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other office of Citizens or the Agent as Citizens
or the Agent may designate in writing from time to time, or (ii) any other
Bank, shall mean its designated office identified on Schedule 1 attached
hereto and made a part hereof with respect to such Bank or such other office
of such Bank as such Bank may designate in writing from time to time.
"Official Body" means any government or political subdivision or any agency,
authority, bureau, central bank, board, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator,
in each case whether foreign or domestic.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Title IV of ERISA.
"Person" shall mean an individual, corporation, limited liability company,
partnership, joint venture, trust, or unincorporated organization or
government or agency or political subdivision thereof.
"Plan" shall mean any deferred compensation program, including both single and
multi-employer plans, subject to Title IV of ERISA and established and
maintained for employees, officers or directors of the Borrower or any
Domestic Subsidiary or any ERISA Affiliate.
"PNC" shall mean PNC Bank, National Association, a national banking
association.
"Potential Default" shall mean any event or condition which with notice,
passage of time or a determination by the Agent or the Majority Banks, or any
combination of the foregoing, would constitute an Event of Default.
16
"Preference" shall mean that as set forth in Section 8.13 hereof.
"Prime Rate" shall mean that rate of interest per annum announced by the Agent
from time to time as its prime rate, which may not represent the lowest rate
charged by the Agent to other borrowers at any time or from time to time.
"Prime Rate Loan" shall mean any Revolving Credit Loan that bears interest
with reference to the Prime Rate.
"Prior Loan Agreement" shall mean the Revolving Line of Credit Agreement,
dated August 4, 1997, by and between the Borrower and Mellon Bank, N.A.,
pursuant to which Mellon Bank, N.A. extended to the Borrower a revolving
credit facility in the principal amount not to exceed Thirty Million and
00/100 Dollars ($30,000,000.00), as amended, modified or supplemented from
time to time.
"Prohibited Transaction" shall mean any transaction which is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"Pro Rata Share" shall mean, with respect to each Bank, its Commitment
Percentage.
"Purchase Money Security Interest" shall mean Liens upon tangible personal
property securing Indebtedness to any Loan Party or Subsidiary of any Loan
Party or deferred payments by such Loan Party or such Subsidiary for the
purchase of such tangible personal property.
"Refunded Swing Line Loans" shall mean as set forth in Section 2.02(d) hereof.
"Register" shall mean that as set forth in Section 8.17(A)(vii) hereof.
"Regulated Substances" shall mean, without limitation, any substance, material
or waste, regardless of its form or nature, defined under Environmental Laws
as a "hazardous substance," "pollutant," "pollution," "contaminant,"
"hazardous or toxic substance," "extremely hazardous substance," "toxic
chemical," "toxic substance," "toxic waste," "hazardous waste," "special
handling waste," "industrial waste," "residual waste," "solid waste,"
"municipal waste," "mixed waste," "infectious waste," "chemotherapeutic
waste," "medical waste," or "regulated substance" or any other material,
substance or waste, regardless of its form or nature, which otherwise is
regulated by Environmental Laws.
"Reportable Event" shall mean any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder, except any such event as to which the
provision for thirty (30) days notice to the PBGC is waived under applicable
regulations.
"Reporting Quarter" shall mean that as set forth in Section 2.03(a)(ii)
hereof.
"Required Deductions" shall mean that as set forth in Section 2.14 hereof.
"Revolving Credit Facility Commitment" shall mean that as set forth in Section
2.01(a) hereof.
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"Revolving Credit Loan" or "Revolving Credit Loans" shall mean, singularly or
collectively, as the context may require, that as set forth in Section 2.01(a)
hereof.
"Revolving Credit Note" or "Revolving Credit Notes" shall mean, singularly or
collectively, as the context may require, the Revolving Credit Note or
Revolving Credit Notes of the Borrower in the form of Exhibit "A" attached
hereto and made a part hereof, as amended, modified or supplemented from time
to time, together with all extensions, renewals, refinancings or refundings in
whole or in part.
"Subsidiary" or "Subsidiaries" of a Person shall mean (i) any corporation or
trust of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled
to vote for the election of one or more directors or trustees (regardless of
any contingency which does or may suspend or dilute the voting rights) is at
such time owned directly or indirectly by such Person or one or more of such
Person's Subsidiaries, (ii) any partnership of which such Person is a general
partner or of which 50% or more of the partnership interests is at the time
directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is
at the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is controlled or capable of being
controlled by such Person or one or more of such Person's Subsidiaries.
"Standby Letters of Credit" shall mean Letters of Credit issued by the Agent
and/or the Banks pursuant to this Agreement, the drawing under which does not
require the delivery of bills of lading, airway bills or other similar types
of documents of title, or which are customarily referred to as "standby
letters of credit".
"Swing Line Lender" shall mean Citizens in its capacity as Swing Line Lender,
or any Person serving as a successor Swing Line Lender hereunder.
"Swing Line Loan Facility" shall mean as set forth in Section 2.02(a) hereof
and, other than as set forth in Section 2.02(d) hereof, is separate and
distinct from the Revolving Credit Facility Commitment.
"Swing Line Loans" shall mean the Loans made by the Swing Line Lender to the
Borrower pursuant to Section 2.02 hereof, which shall bear interest at the
Swing Line Rate.
"Swing Line Note" shall mean the Swing Line Note, made by the Borrower to the
Swing Line Lender in the form of Exhibit "B" attached hereto and made a part
hereof, as amended, modified or supplemented from time to time, together with
all extensions, renewals, refinancings or refundings in whole or in part.
"Swing Line Rate" shall mean that rate of interest per annum announced by the
Swing Line Lender from time to time as its prime rate, which may not represent
the lowest rate charged by the Swing Line Lender to other borrowers at any
time or from time to time.
"Termination Event" shall mean (i) a Reportable Event, (ii) the termination of
a single employer Plan or the treatment of a single employer Plan amendment as
the termination of such Plan under Section 4041 of ERISA, or the filing of a
18
notice of intent to terminate a single employer Plan, or (iii) the institution
of proceedings to terminate a single employer Plan by the PBGC under Section
4042 of ERISA, or (iv) the appointment of a trustee to administer any single
employer Plan.
"Total Commitment Amount" shall mean the obligation of the Banks hereunder to
make Revolving Credit Loans and to issue Letters of Credit up to the maximum
aggregate principal amount of One Hundred Twenty Five Million and 00/100
Dollars ($125,000,000.00).
"YBTC" shall mean York Bronze Trade Company, a West Virginia corporation.
"YBTC Guaranty" shall mean the Guaranty Agreement, dated of even date
herewith, executed and delivered by YBTC to the Agent for the ratable benefit
of the Banks, as amended, modified or supplemented from time to time.
"York Group" shall mean The York Group, Inc., a Delaware corporation.
"York Group Guaranty" shall mean the Guaranty Agreement, dated of even date
herewith, executed and delivered by the York Group to the Agent for the
ratable benefit of the Banks, as amended, modified or supplemented from time
to time.
"York Group Party" or "York Group Parties" shall mean, singularly or
collectively as the context may require, York Group and its Subsidiaries.
"York Group Property" shall mean all real property, both owned and leased, of
York Group Parties.
"York Merger Agreement" shall mean the Agreement and Plan of Merger, dated as
of May 24, 2001, by and among the York Group, Empire Merger Corp. and the
Borrower, together with all schedules and exhibits with respect thereto.
1.02 Construction and Interpretation.
(a) Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the
plural, the part the whole and "or" has the inclusive meaning represented by
the phrase "and/or". References in this Agreement to "judgments" of the Agent
and the Banks include good faith estimates by the Agent and the Banks (in the
case of quantitative judgments) and good faith beliefs by the Agent and the
Banks (in the case of qualitative judgments). The definition of any document
or instrument includes all schedules, attachments, and exhibits thereto and
all renewals, extensions, supplements, restatements and amendments thereof.
"Hereunder", "herein", "hereto", "hereof", "this Agreement" and words of
similar import refer to this entire document; "including" is used by way of
illustration and not by way of limitation, unless the context clearly
indicates to the contrary; and any action required to be taken by any Loan
Party is to be taken promptly, unless the context clearly indicates to the
contrary.
(b) Agent's or any Bank's Discretion and Consent. Whenever the Agent or any
Bank is granted the right herein to act in its sole discretion or to grant or
withhold consent, such right shall be exercised in good faith.
(c) Accounting Principles. Except as otherwise provided in this Agreement,
all computations and determinations as to accounting or financial matters and
all financial statements to be delivered pursuant to this Agreement shall be
made and prepared in accordance with GAAP (including principals of
consolidation, where appropriate), and all accounting or financial terms shall
19
have the meanings ascribed to such terms by GAAP; provided, however, that all
accounting terms used in Section 5.15 (and all defined terms used in the
definition of any accounting terms used in Section 5.15) shall have the
meaning given to such terms (and defined terms) under GAAP as in effect on the
date hereof applied on a basis consistent with those used in preparing the
annual financial statements of the Borrower and its Subsidiaries referred to
in Section 3.07. In the event of any change after the date hereof in GAAP,
and if such change would result in the inability to determine compliance with
the financial covenants set forth in Section 5.15 based upon the Borrower's
regularly prepared financial statements by reason of the preceding sentence,
then the parties hereto agree to endeavor, in good faith, to agree upon an
amendment to this Agreement that would adjust such financial covenants in a
manner that would not affect the substance thereof, but would allow compliance
therewith to be determined in accordance with the Borrower's financial
statements at that time.
ARTICLE II
THE CREDIT FACILITIES
2.01 Revolving Credit Facility Commitment.
(a) Revolving Credit Loans. Subject to the terms and conditions and relying
upon the representations and warranties set forth in this Agreement, the Notes
and the other Loan Documents, the Banks severally (but not jointly) agree to
make loans (the "Revolving Credit Loans") to the Borrower at any time or from
time to time on or after the Closing Date and to and including the Business
Day immediately preceding the Expiry Date in an aggregate principal amount
which, when combined with the aggregate Letters of Credit Outstanding, shall
not exceed at any one time outstanding One Hundred Twenty Five Million and
00/100 Dollars ($125,000,000.00) (the "Revolving Credit Facility Commitment");
provided, however, that no Bank shall be required to make Revolving Credit
Loans (or participate in the issuance of Letters of Credit) in an aggregate
principal amount outstanding at any one time exceeding such Bank's Commitment.
The Revolving Credit Loans shall be made pro rata in accordance with each
Bank's Commitment Percentage. Within the limits of time and amount set forth
in this Section 2.01, and subject to the provisions of this Agreement
including, without limitation, the Banks' right to demand repayment of the
Revolving Credit Loans upon the occurrence of an Event of Default, the
Borrower may borrow, repay and reborrow under this Section 2.01; provided,
however, that if the Borrower prepays any Libor Rate Loan on a day other than
the last day of the applicable Interest Period for such Libor Rate Loan, then
the Borrower shall comply with the terms and conditions of Section 2.12(c)
with respect to such prepayment.
(b) Revolving Credit Note. The joint and several obligations of the Borrower
to repay the unpaid principal amount of the Revolving Credit Loans made to the
Borrower by each Bank and to pay interest on the unpaid principal amount
thereof is evidenced in part by the Revolving Credit Notes of the Borrower.
Each Revolving Credit Note shall be payable to the order of a Bank in a
principal amount equal to such Bank's Commitment. The executed Revolving
Credit Notes will be delivered by the Borrower to the Banks on the Closing
Date.
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(c) Making, Renewing or Converting of Revolving Credit Loans. Subject to the
terms and conditions set forth in this Agreement and the other Loan Documents,
and provided that the Borrower has satisfied all applicable conditions
specified in Article IV hereof, the Banks shall make Revolving Credit Loans to
the Borrower which, as selected by the Borrower pursuant to this Section
2.01(c), shall be Prime Rate Loans or Libor Rate Loans. In addition, subject
to the terms and conditions set forth below, the Borrower shall have the
opportunity to (i) convert Prime Rate Loans into Libor Rate Loans, (ii)
convert Libor Rate Loans into Prime Rate Loans or (iii) renew Libor Rate Loans
as Libor Rate Loans for additional Interest Periods.
(i) Each Revolving Credit Loan that is made as or converted (from a Libor Rate
Loan) into a Prime Rate Loan shall be made or converted on such Business Day
and in such amount as an Authorized Representative of the Borrower shall
request by written or telephonic notice (confirmed promptly, but in no event
later than one Business Day thereafter, in writing) received by the Agent no
later than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the date of requested
disbursement of or conversion into the requested Prime Rate Loan. Subject to
the terms and conditions of this Agreement, on each borrowing date, the Agent
shall make the proceeds of the Prime Rate Loan available to the Borrower at
the Agent's Office in immediately available funds not later than 2:00 p.m.
(Pittsburgh, Pennsylvania time). Unless an Authorized Representative of the
Borrower shall provide the Agent with the required written notice to convert a
Prime Rate Loan into a Libor Rate Loan on or prior to the third (3rd) Business
Day prior to the date of requested conversion, such Prime Rate Loan shall
automatically continue as a Prime Rate Loan.
(ii) Each Revolving Credit Loan that is made as, renewed as or converted (from
a Prime Rate Loan) into a Libor Rate Loan shall be made, renewed or converted,
on such Business Day, in such amount (greater than or equal to One Million and
00/100 Dollars ($1,000,000.00); provided, however, that any amount in excess
of One Million and 00/100 Dollars ($1,000,000.00) may only be in increments of
Five Hundred Thousand and 00/100 Dollars ($500,000.00)) and with such an
Interest Period as an Authorized Representative of the Borrower shall request
by written or telephonic notice (confirmed promptly, but in no event later
than one Business Day thereafter, in writing) received by the Agent no later
than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the third (3rd) Business Day
prior to the requested date of disbursement of, renewal of or conversion into
the requested Libor Rate Loan. Subject to the terms and conditions of this
Agreement, on each borrowing date, the Agent shall make the proceeds of the
Libor Rate Loan available to the Borrower at the Agent's Office in immediately
available funds, no later than 10:00 a.m. (Pittsburgh, Pennsylvania time). In
addition, in the event that the Borrower desires to renew a Libor Rate Loan
for an additional Interest Period, an Authorized Representative of the
Borrower shall provide the Agent with written notice thereof on or prior to
the third (3rd) Business Day prior to the expiration of the applicable
Interest Period. In the event that an Authorized Representative of the
Borrower fails to provide the Agent with the required written or telephonic
notice (confirming promptly, but in no event later than one Business Day
thereafter, in writing) on or prior to the third (3rd) Business Day prior to
the expiration of the applicable Interest Period for a Libor Rate Loan, the
Borrower shall be deemed to have given written notice that such Loan shall be
converted into a Prime Rate Loan on the last day of the applicable Interest
Period. Notwithstanding anything contained herein to the contrary, there
shall not be more than four (4) Revolving Credit Loans that are Libor Rate
Loans outstanding at any time. Each written notice of any Libor Rate Loan
shall be irrevocable and binding on the Borrower and the Borrower shall
21
indemnify the Agent and the Banks against any loss or expense incurred by the
Banks as a result of any failure by the Borrower to consummate such
transaction calculated as set forth in Section 2.12(c) hereof.
(iii) Each Bank hereby authorizes the Agent to make all Loans that are
requested by the Borrower on the proposed date of disbursement as described
above. Upon receipt of a request to make, renew or convert a Revolving Credit
Loan hereunder, the Agent shall promptly advise each of the Banks of the
proposed date of disbursement, renewal or conversion, the amount and type of
each such Revolving Credit Loan, the applicable Interest Period and the Bank's
Commitment amount thereof. Each Bank shall remit its Commitment Percentage of
the principal amount of each Revolving Credit Loan to the Agent at the Office
of the Agent in immediately available funds no later than 2:00 p.m.
(Pittsburgh, Pennsylvania time) on the applicable date of disbursement. If
the amount of such Bank's Commitment Percentage is not made available to the
Agent by such Bank on the applicable borrowing date, the Agent shall not be
required to fund such Bank's Commitment Percentage of the Revolving Credit
Loans on the applicable borrowing date; provided, however, the Agent may elect
in its sole discretion to fund such Bank's Commitment Percentage on the
applicable borrowing date, and such Bank shall be subject to the repayment
obligations set forth below.
(iv) The Agent may assume that each Bank has made or will make the proceeds of
a Loan available to the Agent unless the Agent shall have been notified by
such Bank on or before the later of (a) the close of business on the Business
Day preceding the applicable borrowing date with respect to the Loan, or (b)
one (1) hour before the time on which the Agent actually funds the proceeds of
such Loan to the Borrower (whether using its own funds pursuant to this
subsection or using proceeds deposited with the Agent by the Banks and whether
such funding occurs before or after the time on which the Banks are required
to deposit the proceeds of such Loan with the Agent). The Agent may, in
reliance upon such assumption (but shall not be required to), make available
to the Borrower a corresponding amount. If such corresponding amount is not
in fact made available to the Agent by such Bank, the Agent shall be entitled
to recover such amount on demand from such Bank (or, if such Bank fails to pay
such amount, forthwith upon such demand from the Borrower) together with
interest thereon, in respect of each day during the period commencing on the
date such amount was made available to the Borrower and ending on the date the
Agent recovers such amount, at a rate per annum equal to (y) the Federal Funds
Rate during the first three (3) days after such interest shall begin to accrue
and (z) the Applicable Rate in respect of such Loan after the end of such
three (3) day period.
(d) Maximum Principal Balance of Revolving Credit Loans and Letters of Credit
Outstanding. The sum of the aggregate principal amount of all Revolving
Credit Loans outstanding and the aggregate Letters of Credit Outstanding shall
not exceed the amount of the Revolving Credit Facility Commitment. The
Borrower agrees that if at any time the sum of the aggregate principal amount
of all Revolving Credit Loans outstanding and the aggregate Letters of Credit
Outstanding exceeds the amount of the Revolving Credit Facility Commitment
(the "Excess Amount"), the Borrower shall promptly, but in no event later than
one Business Day thereafter, pay to the Agent (for the ratable benefit of the
Banks) such Excess Amount. If not sooner paid, the entire principal balance
of all outstanding Revolving Credit Loans, together with all unpaid accrued
interest thereon, and all other sums and costs owed to the Agent and the Banks
by the Borrower pursuant to this Agreement, shall be immediately due and
payable on the Expiry Date, without notice, presentment or demand of any kind.
22
2.02 Swing Line Loan Facility.
(a) Swing Line Loans. Subject to the terms and conditions and relying upon
the representations and warranties set forth in this Agreement and the other
Loan Documents, the Swing Line Lender may, in its sole and absolute
discretion, make available to the Borrower at any time and from time to time
during the period from the Closing Date through and including the Business Day
immediately preceding the earlier of (i) the date upon which the aggregate
unpaid principal balance of the Swing Line Loans become due and payable by
demand or (ii) the Expiry Date, by making Swing Line Loans to the Borrower in
an aggregate principal amount not exceeding at any one time outstanding Ten
Million and 00/100 Dollars ($10,000,000.00) (the "Swing Line Loan Facility").
If not sooner paid, each Swing Line Loan, all unpaid interest thereon and all
other sums and costs incurred hereunder with respect to such Swing Line Loan
shall be immediately due and payable on the earlier of (i) thirty (30)
Business Days from the date such Swing Line Loan was made, (ii) demand or
(iii) the Expiry Date, without notice, presentment or demand (unless payable
by demand). Within the limits of time and amount set forth in this Section
2.03, and subject to the provisions of this Agreement including, without
limitation, the Swing Line Lender's right to demand repayment of the Swing
Line Loans at any time with or without the occurrence of an Event of Default,
Borrower may borrow, repay and reborrow under this Section 2.03.
(b) Swing Line Note. The obligation of the Borrower to repay the unpaid
principal amount of the Swing Line Loans made to the Borrower by the Swing
Line Lender and to pay interest on the unpaid principal amount thereof will be
evidenced in part by the Swing Line Note of the Borrower. The executed Swing
Line Note will be delivered by Borrower to the Swing Line Lender on the
Closing Date.
(c) Making Swing Line Loans. Subject to the terms and conditions set forth in
this Agreement and the other Loan Documents, and provided that the Borrower
has satisfied all applicable conditions specified in Article IV hereof, the
Swing Line Lender may, in its sole and absolute discretion, make Swing Line
Loans to the Borrower on such Business Day and in such amount as an Authorized
Representative of the Borrower shall request by written or telephonic notice
(confirmed promptly, but in no event later than one (1) Business Day
thereafter in writing) received by the Swing Line Lender no later than 10:00
a.m. (Pittsburgh, Pennsylvania time) on the date of requested disbursement of
the Swing Line Loan. Subject to the terms and conditions of this Agreement,
on each borrowing date, the Swing Line Lender shall make the proceeds of the
Swing Line Loan available to the Borrower at the Swing Line Lender's Office in
immediately available funds not later than 2:00 p.m., Pittsburgh, Pennsylvania
time. The Swing Line Lender shall give notice to the Agent no later than
10:00 a.m. (Pittsburgh, Pennsylvania time) of the next Business Day or such
other time as the Agent and the Swing Line Lender may agree of the amount of
each such Swing Line Loan.
(d) Refunded Swing Line Loans. With respect to any Swing Line Loans, the
Swing Line Lender may, at any time in its sole and absolute discretion,
deliver to the Agent (with a copy to the Borrower), no later than 10:00 a.m.
(Pittsburgh, Pennsylvania time) on the first (1st) Business Day immediately
preceding the proposed date of disbursement, a notice (which shall be deemed
to be a notice of borrowing given by an Authorized Representative) requesting
the Banks to make Revolving Credit Loans that are Prime Rate Loans on such
date in an amount equal to the lesser of (a) the amount of such Swing Line
Loans outstanding on the date such notice is given which the Swing Line Lender
requests the Banks to prepay or (b) the difference between the Swing Line
23
Lender's Commitment minus the sum of (a) the Swing Line Lender's Pro Rata
Share of Letters of Credit Outstanding plus (b) the amount of the Swing Line
Lender's outstanding Revolving Credit Loans (the lesser of (a) and (b) is the
"Refunded Swing Line Loans"). Anything contained in this Agreement to the
contrary notwithstanding, (i) the proceeds of such Revolving Credit Loans made
by Banks other than the Swing Line Lender shall be immediately delivered by
the Agent to the Swing Line Lender (and not to the Borrower) and applied to
repay a corresponding portion of the Refunded Swing Line Loans and (ii) on the
day such Revolving Credit Loans are made, the Swing Line Lender's Pro Rata
Share of the Refunded Swing Line Loans shall be deemed to be paid with the
proceeds of a Revolving Credit Loan made by the Swing Line Lender, and such
portion of the Swing Line Loans deemed to be so paid shall no longer be
outstanding as Swing Line Loans and shall no longer be due under the Swing
Line Note of the Swing Line Lender but shall instead constitute part of the
Swing Line Lender's outstanding Revolving Credit Loans and shall be due under
the Revolving Credit Note of the Swing Line Lender.
Anything contained herein to the contrary notwithstanding, each Bank's
obligation to make Revolving Credit Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be affected by any
circumstance, including (a) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (b) the occurrence or
continuation of an Event of Default or a Potential Default; (c) any Material
Adverse Change; (d) any breach of this Agreement or any other Loan Document by
the Borrower; or (e) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that such obligations
of each Bank are subject to the condition that (X) the Swing Line Lender
believed in good faith that all conditions under Article IV to the making of
the applicable Swing Line Loans were satisfied at the time such Swing Line
Loans were made or (Y) the satisfaction of any such condition not satisfied
had been waived in writing by the Banks prior to or at the time such Swing
Line Loans were made.
2.03 Interest Rates.
(a) Interest on the Loans. Subject to the terms and conditions of this
Agreement, the aggregate outstanding principal balance of the Swing Line Loans
shall bear interest at a rate per annum equal to the Swing Line Rate and the
aggregate outstanding principal balance of the Revolving Credit Loans shall
be, at the option of the Borrower as selected pursuant to Section 2.01(c)
hereof, (x) Prime Rate Loans which shall bear interest for each day at the
rates set forth below or (y) Libor Rate Loans which shall bear interest during
each applicable Interest Period at the rates set forth below:
(i) Subject to the terms and conditions of this Agreement, on the Closing Date
and through the day immediately preceding the first Incentive Pricing
Effective Date, (x) Revolving Credit Loans that are Prime Rate Loans shall
bear interest for each day at a rate per annum equal to the Prime Rate plus
the Applicable Prime Margin corresponding to Tier II as set forth below and
(y) Revolving Credit Loans that are Libor Rate Loans shall bear interest
during each applicable Interest Period at a rate per annum equal to the Libor
Rate plus the Applicable Libor Margin corresponding to Tier II as set forth
below;
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(ii) Subject to the terms and conditions of this Agreement, during each Fiscal
Quarter, in accordance with Section 5.01(b) hereof, the Borrower shall submit
to the Agent and the Banks quarterly financial statements (the Fiscal Quarter
in which such financial statements are required to be received by the Agent
and the Banks is the "Reporting Quarter") as of the last day of the Fiscal
Quarter immediately preceding such Reporting Quarter (with respect to any
Reporting Quarter, the Fiscal Quarter immediately preceding such Reporting
Quarter is the "Measurement Quarter"). Upon receipt of such quarterly
financial statements by the Agent and the Banks in accordance with Section
5.01(b), the Borrower's Leverage Ratio shall be calculated as of the last day
of the Measurement Quarter ending December 31, 2001 and as of the last day of
each Measurement Quarter thereafter. From the first day of the first full
calendar month following the Agent's and the Banks' receipt of such quarterly
financial statements (the "Incentive Pricing Effective Date") until the next
Incentive Pricing Effective Date, (x) Prime Rate Loans shall bear interest for
each day at a rate per annum equal to the Prime Rate plus the applicable
margin determined by reference to the Borrower's Leverage Ratio as set forth
below (the "Applicable Prime Margin") and (y) Libor Rate Loans shall bear
interest during each applicable Interest Period at a rate per annum equal to
the Libor Rate plus the applicable margin determined by reference to the
Borrower's Leverage Ratio as set forth below (the "Applicable Libor Margin"):
Applicable Applicable
Applicable Applicable Fee Commitment
Tier Leverage Ratio Libor Margin Prime Margin Percentage Fee Percentage
I < 0.75 .75% 0.00% .75% 0.20%
II ? 0.75 < 1.00 .875% 0.00% .875% 0.225%
III ? 1.00 < 1.25 1.00% 0.00% 1.00% 0.25%
IV ? 1.25 < 1.50 1.125% 0.125% 1.125% 0.275%
V ? 1.50 < 1.75 1.25% 0.25% 1.25% 0.30%
VI ? 1.75 1.50% 0.50% 1.50% 0.375%
(iii) Subject to the terms and conditions of this Agreement, in the event that
the Borrower fails to timely deliver the financial statements required by
Section 5.01(b) hereof, the Applicable Margin shall be the amount
corresponding to Tier VI until the delivery of such financial statements.
(b) Calculation of Interest and Fees; Adjustment to Prime Rate and Swing Line
Rate. Interest on the Loans, unpaid fees and other sums payable hereunder
shall be computed on the basis of a year of three hundred sixty (360) days and
paid for the actual number of days elapsed. In the event of any change in the
Prime Rate or the Swing Line Rate, the rate of interest applicable to each
Prime Rate Loan or Swing Line Loan shall be adjusted to immediately correspond
with such change; provided, however, that any interest rate charged hereunder
shall not exceed the Maximum Rate.
(c) Interest After Maturity or Default; Interest Laws. Upon the occurrence
and during the continuance of an Event of Default, (i) the unpaid principal
amount of the Loans or any portion thereof, accrued interest thereon, any fees
or any other sums payable hereunder shall thereafter until paid in full bear
interest at a rate per annum equal to the Applicable Rate plus two percent
(2.00%); (ii) each Libor Rate Loan shall automatically convert into a Prime
Rate Loan at the end of the applicable Interest Period; and (iii) no Loans may
be made as, renewed as or converted into a Libor Rate Loan. Notwithstanding
any provisions to the contrary contained in this Agreement or any other Loan
Document, the Borrower shall not be required to pay, and the Banks shall not
25
be permitted to collect, any amount of interest in excess of the maximum
amount of interest permitted by applicable Law ("Excess Interest"). If any
Excess Interest is provided for or determined by a court of competent
jurisdiction to have been provided for in this Agreement or in any other Loan
Document, then, in such event: (1) the provisions of this subsection shall
govern and control; (2) the Borrower shall not be obligated to pay any Excess
Interest; (3) any Excess Interest that any Bank may have received hereunder
shall be, at the Majority Banks' option, (a) applied as a credit against the
outstanding principal balance of the Indebtedness evidenced by the Notes or
accrued and unpaid interest thereon (not to exceed the maximum amount
permitted by Law), (b) refunded to the payor thereof, or (c) any combination
of the foregoing; (4) the interest rate(s) provided for herein shall be
automatically reduced to the maximum lawful rate allowed from time to time
under applicable Law (the "Maximum Rate"), and this Agreement and the other
Loan Documents shall be deemed to have been and shall be, reformed and
modified to reflect such reduction; and (5) the Borrower shall have no action
against the Agent or the Banks for any damages arising out of the payment or
collection of any Excess Interest.
2.04 Interest Payments.
The Borrower shall pay to the Agent for the ratable account of the Banks
interest on the aggregate outstanding balance of the Revolving Credit Loans
which are Prime Rate Loans in arrears, on January 1, 2002 and on the first day
of each April, July, October and January thereafter through and including the
Expiry Date. The Borrower shall pay to the Agent for the ratable account of
the Banks interest on the unpaid principal balance of the Revolving Credit
Loans that are Libor Rate Loans on the earlier of (i) the last day of the
applicable Interest Period for such Loan or (ii) for such Loans with an
applicable Interest Period exceeding three (3) Months, on each and every three
(3) Month anniversary of each such Loan during the period from the Closing
Date to and including the Expiry Date. The Borrower shall pay to the Swing
Line Lender interest on the unpaid principal balance of the aggregate
outstanding balance of the Swing Line Loans in arrears, on January 1, 2002 and
on the first day of each April, July, October and January thereafter through
and including the Expiry Date. After maturity of any part of the Loans
(whether upon demand (in the case of the Swing Line Loans), the occurrence of
an Event of Default, by acceleration or otherwise), interest on such part of
the Loans shall be immediately due and payable without notice, presentment, or
demand of any kind.
2.05 Fees.
The Borrower shall pay to the Agent for the ratable account of the Banks:
(i) A commitment fee on the unused portion of the amount of the Revolving
Credit Facility Commitment during the period from the date of this Agreement
to the Expiry Date, payable quarterly in arrears beginning on January 1, 2002
and continuing on the first (1st) day of each April, July, October and January
thereafter and on the Expiry Date. Such fee shall be calculated daily, and
shall equal the amount by which the amount of the Revolving Credit Facility
Commitment has exceeded the closing principal balance of the sum of the
outstanding principal balance of the Revolving Credit Loans and the Letters of
Credit Outstanding on each day, multiplied by the applicable percentage with
respect to commitment fees for such day determined by reference to the
Borrower's Leverage Ratio as set forth in set forth in Section 2.03(a)(ii)
hereof (the "Applicable Commitment Fee Percentage"); and
(ii) The Letter of Credit Commission pursuant to Section 2.07 hereof.
26
2.06 Agreement to Issue Letters of Credit.
From time to time during the period from the Closing Date to the fifteenth
(15th) day preceding the Expiry Date, subject to the further terms and
conditions hereof, including those required in connection with the making of
Revolving Credit Loans, the Agent shall issue Standby Letters of Credit or
Commercial Letters of Credit (collectively the "Letters of Credit") for the
account of the Borrower in an amount not to exceed Ten Million and 00/100
Dollars ($10,000,000.00) in the aggregate as a subfacility of the Revolving
Credit Facility Commitment; provided, however, that on any date on which the
Borrower requests a Letter of Credit, and after giving effect to the Letter of
Credit Face Amount of such Letter of Credit, the sum of all Revolving Credit
Loans outstanding and the Letters of Credit Outstanding shall not exceed the
Revolving Credit Facility Commitment. All such Letters of Credit shall be
issued by the Agent in accordance with its then current practice relating to
the issuance of letters of credit including, but not limited to, the execution
and delivery to the Agent of applications and agreements required by the Agent
and the payment by the Borrower of all applicable fees with respect thereto.
As of the date hereof, those Letters of Credit set forth on Schedule 2.06
hereof (collectively, the "Existing Letters of Credit"), which were issued
under the Prior Loan Agreement and are outstanding on the date hereof, will be
deemed to be Letters of Credit issued and outstanding hereunder.
Each request for a Letter of Credit shall be delivered to the Agent no later
than 10:00 a.m. (Pittsburgh, Pennsylvania time) on the second (2nd) Business
Day, or such shorter period as may be agreed to by the Agent, prior to the
proposed date of issuance. Each such request shall be in a form acceptable to
the Agent and specify the Letter of Credit Face Amount thereof, the account
party, the beneficiary, the intended date of issuance, the expiry date
thereof, and the nature of the transaction to be supported thereby. All such
Letters of Credit shall be issued by the Agent in accordance with its then
current practice relating to the issuance of Letters of Credit including, but
not limited to, the execution and delivery to the Agent of applications and
agreements required by the Agent and the payment by the Borrower of all
applicable fees required by Section 2.07 hereof. Immediately upon the
issuance of each Letter of Credit, each Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Agent a
participation in such Letter of Credit and each drawing thereunder in an
amount equal to such Bank's Pro Rata Share of the Letter of Credit Face Amount
of such Letter of Credit. The Agent shall promptly, but in any event not
later than the next Business Day, provide to each Bank notice of each such
request for a Letter of Credit by the Borrower.
2.07 Letter of Credit Fees.
The Borrower shall pay to the Agent for its own account (a) a fronting fee for
each Letter of Credit issued hereunder, such fee shall be equal to one-eighth
of one percent (0.125%) of the daily average amount of Letters of Credit
Outstanding during the preceding calendar quarter, payable quarterly in
arrears beginning on January 1, 2002 and continuing on the first (1st) day of
each April, July, October and January thereafter and on the Expiry Date, (b)
the Agent's standard amendment fees for each Letter of Credit issued
hereunder, such fees to be paid on the date of the amendment of such Letter of
Credit and (c) any reasonable out-of-pocket expenses and costs incurred by the
Agent for the issuance of any Letter of Credit issued hereunder, such fees to
be paid on the day of issuance of such Letter of Credit. The Borrower shall
also pay to the Agent for the ratable account of the Banks a fee (the "Letter
of Credit Commission"), calculated daily and equal to the amount of the
27
Letters of Credit Outstanding on each day multiplied by the applicable
percentage for such day determined by reference to the Borrower's Leverage
Ratio as set forth in Section 2.03(a)(ii) hereof (the "Applicable L/C Fee
Percentage"), such fee to be paid quarterly in arrears beginning on January 1,
2002 and continuing on the first (1st) day of each April, July ,October, and
January thereafter and on the Expiry Date. Notwithstanding the foregoing,
after the occurrence and during the continuance of an Event of Default, the
Letter of Credit Commission shall be increased by two percent (2.00%) per
annum.
2.08 Payments Under Letters of Credit.
Upon a draw under any Letter of Credit, the Borrower shall immediately, but in
any event not later than the end of such Business Day, reimburse the Agent for
such drawing under a Letter of Credit. If (i) the Borrower shall not have
reimbursed the Agent for such drawing under such Letter of Credit by the end
of such Business Day, (ii) the Agent must for any reason return or disgorge
such reimbursement, or (iii) the Borrower is required to make a payment under
Section 7.02(a)(ii) hereof and fails to make such payment, then the amount of
each unreimbursed drawing under such Letter of Credit and payment required to
be made under Section 7.02(a)(ii) hereof shall automatically be converted into
a Revolving Credit Loan which shall be a Prime Rate Loan made on the date of
such drawing for all purposes of this Agreement. The Borrower's obligation to
reimburse the Agent with respect to each drawing under a Letter of Credit
shall be absolute and unconditional.
2.09 Period of Issuance and Term of Letters of Credit.
Letters of Credit shall only be issued by the Agent for the account of the
Borrower for such terms which expire at least fifteen (15) days prior to the
Expiry Date.
2.10 Booking of Libor Rate Loans.
Each Bank may make, carry or transfer Libor Rate Loans at, to or for the
account of, any of its branch offices or the office of an affiliate of such
Bank; provided, however, that no such action shall result in increased
liability or cost to the Borrower, including any increased liability or cost
pursuant to Section 2.12 or 2.13 hereof.
2.11 Assumptions Concerning Funding of Libor Rate Loans.
Calculation of all amounts payable to each Bank under Section 2.12(c) shall be
made as though each Bank had actually funded its relevant Libor Rate Loan
through the purchase of a Libor deposit bearing interest at the Libor Rate in
an amount equal to the amount of that Libor Rate Loan and having maturity
comparable to the relevant Interest Period and through the transfer of such
Libor deposit from an offshore office to a domestic office in the United
States of America; provided, however, that each Bank may fund each of its
Libor Rate Loans in any manner it sees fit and the foregoing assumption shall
be utilized only for the calculation of amounts payable under Section 2.12(c).
2.12 Additional Costs.
(a) If, due to either (i) the introduction of, or any change in, or in the
interpretation of, any Law or (ii) the compliance with any guideline or
request from any central bank or other Official Body (whether or not having
the force of Law), there shall be any increase in the cost to, or reduction in
income receivable by, a Bank of making, funding or maintaining Loans (or
commitments to make the Loans), then the Borrower shall from time to time,
upon demand by such Bank made within a reasonable time after such Bank's
28
determination thereof, pay to the Agent for the account of such Bank
additional amounts sufficient to reimburse such Bank for any such additional
costs or reduction in income. All such additional amounts shall be determined
by such Bank in good faith using appropriate attribution and averaging methods
ordinarily employed by such Bank. A certificate of such Bank submitted to the
Borrower in good faith as to the amount of such additional costs shall be
conclusive and binding for all purposes, absent manifest error. Within ten
(10) Business Days after the Agent or such Bank notifies the Borrower in
writing of any such additional costs pursuant to this Section 2.12(a), the
Borrower may (A) repay in full all Loans of any types so affected then
outstanding, together with interest accrued thereon to the date of such
repayment, or (B) convert all Loans of any types so affected then outstanding
into Loans of any other type not so affected upon not less than four (4)
Business Days' notice to the Agent. If any such repayment or conversion of
any Libor Rate Loan occurs on any day other than the last day of the
applicable Interest Period for such Loan, the Borrower also shall pay to the
Agent for the ratable account of the Banks such additional amounts as set
forth in Section 2.12(c).
(b) If either (i) the introduction of, or any change in, or in the
interpretation of, any Law or (ii) the compliance with any guideline or
request from any central bank or other Official Body (whether or not having
the force of Law), affects the amount of capital required to be maintained by
any Bank or any corporation controlling any Bank and such Bank determines in
good faith that the amount of such capital is increased by or based upon the
existence of the Loans (or commitment to make the Loans), then, within ten
(10) Business Days of demand by such Bank, the Borrower shall pay to the Agent
for the account of such Bank from time to time as specified by such Bank,
additional amounts sufficient to compensate such Bank in the light of such
circumstances, to the extent that such Bank determines in good faith such
increase in capital to be allocable to the existence of such Bank's Loans (or
commitment to make the Loans). Any such demand by a Bank must be made within
a reasonable time after such Bank's determination as set forth in the
immediately preceding sentence. A certificate of such Bank in good faith
submitted to the Borrower as to such amounts shall be presumptive evidence of
such amounts. Within ten (10) Business Days after the Agent or such Bank
notifies the Borrower in writing of any such additional costs pursuant to this
Section 2.12(b), the Borrower may (A) repay in full all Loans of any types so
affected then outstanding, together with interest accrued thereon to the date
of such prepayment, or (B) convert all Loans of any types so affected then
outstanding into Loans of any other type not so affected upon not less than
four (4) Business Days' notice to such Bank. If any such prepayment or
conversion of any Libor Rate Loan occurs on any day other than the last day of
the applicable Interest Period for such Loan, the Borrower also shall pay to
the Agent for the ratable account of the Banks such additional amounts as set
forth in Section 2.12(c).
(c) If the Borrower shall repay or convert any Libor Rate Loan on a day other
than the last day of the applicable Interest Period for such Loan (whether
such repayment or conversion is (i) permitted by this Section 2.12 or Section
2.13, (ii) permitted as a result of the failure of the Borrower to consummate
a transaction after providing notice as set forth in Sections 2.01(c)(ii),
(iii) otherwise permitted by a Bank, or (iv) otherwise required under the
terms of this Agreement), the Borrower shall pay (within ten (10) Business
Days after written demand) to the Agent for the ratable benefit of the Banks
such additional amounts reasonably determined by the Banks in good faith to be
29
sufficient to indemnify the Banks against any loss, cost, or expense incurred
by the Banks as a result of such prepayment or conversion including, without
limitation, any loss (including loss of anticipated profits), costs or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by the Banks to fund such Loan, and a certificate as to the
amount of any such loss, cost or expense submitted by any Bank to the Borrower
in good faith shall be presumptive evidence of such amount.
2.13 Illegality; Impracticability.
Notwithstanding any other provision contained in this Agreement, if: (a) it
is unlawful, or any central bank or other Official Body shall determine that
it is unlawful, for the Agent or any Bank to perform its obligations hereunder
to make, renew, or convert Loans hereunder; or (b) on any date on which a
Libor Rate would otherwise be set, any Bank shall have in good faith
determined (which determination shall be conclusive absent manifest error)
that (i) adequate and reasonable means do not exist for ascertaining a Libor
Rate, (ii) a contingency has occurred which materially and adversely affects
the interbank markets, or (iii) the effective cost to such Bank of funding a
proposed Libor Rate Loan exceeds the Libor Rate then (y) upon notice thereof
by the Agent or such Bank to the Borrower, the obligation of such Bank to make
or renew a Loan of a type so affected or to convert any type of Loan into a
Loan of a type so affected shall terminate and the Banks shall thereafter be
obligated to make Prime Rate Loans whenever any written notice requests any
type of Loans so affected and (z) upon written demand therefor by such Bank to
the Borrower, the Borrower shall (i) forthwith prepay in full all Loans of the
type so affected then outstanding, together with interest accrued thereon or
(ii) request that such Bank, upon five (5) Business Days' notice, convert all
Loans of the type so affected then outstanding into Loans of a type not so
affected. If any such prepayment or conversion of any Libor Rate Loan occurs
on any day other than the last day of the applicable Interest Period for such
Loan, the Borrower also shall pay to the Agent for the ratable benefit of the
Banks such additional amounts as set forth in Section 2.12(c).
2.14 Payments.
All payments to be made with respect to principal, interest, fees or other
amounts due from the Borrower under this Agreement or under the Notes are
payable at 12:00 noon (Pittsburgh, Pennsylvania time), on the day when due,
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived, and an action for the payments will accrue
immediately. All such payments must be made to the Agent at its Office in
U.S. Dollars and in funds immediately available at such Office, without
setoff, counterclaim or other deduction of any nature. The Agent may in its
discretion deduct such payments from the Borrower's demand or deposit accounts
with the Agent if not paid within five (5) Business Days after the due date.
All such payments shall be applied at the option of the Agent and the Banks to
accrued and unpaid interest, outstanding principal and other sums due under
this Agreement in such order as the Agent and the Banks, in their sole
discretion, shall elect. All such payments shall be made absolutely net of,
without deduction or offset, and altogether free and clear of any and all
present and future taxes, levies, deductions, charges, and withholdings and
all liabilities with respect thereto, excluding income and franchise taxes
imposed on the Banks under the Laws of the United States or any state or
political subdivision thereof. If the Borrower is compelled by Law to deduct
any such taxes or levies (other than such excluded taxes) or to make any such
other deductions, charges, or withholdings (collectively, the "Required
Deductions"), the Borrower will pay to the Agent for the ratable benefit of
30
the Banks an additional amount equal to the sum of (i) the aggregate amount of
all Required Deductions and (ii) the aggregate amount of United States federal
or state income taxes required to be paid by the Banks in respect of such
Required Deductions.
2.15 Loan Account.
The Agent will open and maintain on its books and records, including computer
records, in accordance with its customary procedures, a loan account (the
"Loan Account") for the Borrower in which shall be recorded the date and
amount of each Loan made by the Banks and the date and amount of each payment
and prepayment in respect thereof. The Agent shall record in the Loan Account
the principal amount of the Loans owing to each Bank from time to time. The
Loan Account shall constitute presumptive evidence of the accuracy of the
information contained therein. Any failure by the Agent to make any such
notation or record shall not affect the obligations of the Borrower to the
Banks with respect to the Loans.
2.16 Estoppel.
As further consideration for the entry of the Banks into this Agreement, the
Borrower hereby represents and warrants that it does not presently have any
claims or actions of any kind at Law or in equity against Mellon Bank, N.A.
arising out of or in any way relating to the Prior Loan Agreement or any
related documents with respect thereto, the transactions referenced in or
contemplated by this Agreement or any acts, transactions, or events that are
or were the subject matter of any other prior loans, agreements or guaranties
involving the Borrower and a Bank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Banks that:
3.01 Organization and Qualification.
Each Loan Party is a corporation, partnership or limited liability company
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization. Each Domestic Subsidiary of each Loan Party and
each Subsidiary of York Group is duly organized, validly existing and in good
standing under the Laws of its jurisdiction of organization. Each ▇▇▇▇▇▇▇▇
Loan Party, each Domestic Subsidiary of each Loan Party and, to the knowledge
of the officers and directors of the Borrower, each York Group Party are duly
qualified or licensed to do business as foreign corporations, partnership or
limited liability companies, as the case may be, and are in good standing in
all jurisdictions in which the ownership of their properties or the nature of
their activities or both makes such qualification or licensing necessary
except to the extent that the failure to be so qualified or licensed would not
have a Material Adverse Effect.
3.02 Authority; Power to Carry on Business; Licenses.
The Borrower has the power and authority to make the borrowings provided for
herein, to execute and deliver the Notes in evidence of such borrowing and to
execute and deliver each of the other Loan Documents to which it is a party
and all such action has been duly and validly authorized by all necessary
corporate proceedings on the Borrower's part. Each Guarantor has the power
and authority to execute and deliver each of the Loan Documents to which it is
31
a party and all such action has been duly and validly authorized by all
necessary corporate proceedings on each such Guarantor's part. Each ▇▇▇▇▇▇▇▇
Loan Party, each Domestic Subsidiary of such Loan Party and, to the knowledge
of the officers and directors of the Borrower, each York Group Party have all
requisite power and authority to own and operate their properties and to carry
on their businesses as now conducted and as presently planned to be conducted.
Each ▇▇▇▇▇▇▇▇ Loan Party, each Domestic Subsidiary of such Loan Party and, to
the knowledge of the officers and directors of the Borrower, each York Group
Party have all licenses, permits, consents and governmental approvals or
authorizations necessary to carry on their business as now conducted except to
the extent that the failure to have any such license, permit, consent, or
approval would not have a Material Adverse Effect.
3.03 Execution and Binding Effect.
Each of the Loan Documents have been duly and validly executed and delivered
by each Loan Party that is a party thereto, and constitutes a legal, valid and
binding obligation of such Loan Party, enforceable in accordance with its
terms.
3.04 Absence of Conflicts.
Neither the execution and delivery of this Agreement, the Notes or the other
Loan Documents, the consummation of the transactions contemplated in any of
them, nor the performance of or compliance with the terms and conditions
thereof will (a) violate any Law, (b) conflict with or result in a breach of
or a default under the certificate or articles of incorporation or bylaws,
certificate of limited partnership or partnership agreement, certificate of
organization or operating agreement or any other organizational document, as
the case may be, of any Loan Party or any of its Subsidiaries, (c) conflict
with or result in a breach of or a default under any agreement or instrument
to which any ▇▇▇▇▇▇▇▇ Loan Party or any Domestic Subsidiary is a party or by
which it or any of its properties (now owned or acquired in the future) may be
subject or bound which could have a Material Adverse Effect, (d) to the
knowledge of the officers and directors of the Borrower, conflict with or
result in a breach of or a default under any agreement or instrument to which
any of the York Group Parties is a party or by which it or any of its
properties (now owned or acquired in the future) may be subject or bound which
could have a Material Adverse Effect, (e) result in the creation or imposition
of any material Lien upon any property (owned or leased) of any ▇▇▇▇▇▇▇▇ Loan
Party or any of its Subsidiaries (other than York Group Parties), or (f) to
the knowledge of the officers and directors of the Borrower, result in the
creation or imposition of any material Lien upon any property (owned or
leased) of any York Group Party.
3.05 Authorizations and Filings.
No authorization, consent, approval, license, exemption or other action by,
and no registration, qualification, designation, declaration or filing with,
any Official Body is or will be necessary or advisable in connection with the
execution and delivery of this Agreement or the other Loan Documents, the
consummation of the transactions contemplated herein or therein, or the
performance of or compliance with the terms and conditions hereof or thereof.
3.06 Title to Property.
Each ▇▇▇▇▇▇▇▇ Loan Party, each Domestic Subsidiary of such Loan Party and, to
the knowledge of the officers and directors of the Borrower, each York Group
Party have good and marketable title in fee simple to all real property
purported to be owned by them and good and marketable title to all other
32
property purported to be owned by them, including that reflected in the most
recent financial information referred to in Section 3.07 hereof or submitted
to the Agent and the Banks pursuant to Section 5.01 of this Agreement (except
as sold or otherwise disposed of in the ordinary course of business), subject
only to Liens permitted by Section 6.01 of this Agreement.
3.07 Financial Information.
The financial information provided by the Loan Parties to the Agent and the
Banks with respect to each ▇▇▇▇▇▇▇▇ Loan Party and each Subsidiary of such
Loan Party (other than York Group Parties) as of the Closing Date is accurate
and complete in all material respects and has been prepared in accordance with
GAAP consistently applied. To the knowledge of the officers and directors of
the Borrower, the financial information provided by the Borrower to the Agent
and the Banks with respect to York Group Parties as of the Closing Date is
accurate and complete in all material respects and has been prepared in
accordance with GAAP consistently applied. Each ▇▇▇▇▇▇▇▇ Loan Party and, to
the knowledge of the officers and directors of the Borrower, each York Group
Party have made full and true disclosure of all pertinent financial and other
material information in connection with the transactions contemplated hereby.
3.08 Taxes.
All tax returns required to be filed by each ▇▇▇▇▇▇▇▇ Loan Party and each
Domestic Subsidiary of each Loan Party have been properly prepared, executed
and filed. To the knowledge of the officers and directors of the Borrower,
all tax returns required to be filed by York Group Parties have been properly
prepared, executed and filed. Except as may be permitted under Section 5.05
hereof, all material taxes, assessments, fees and other governmental charges
upon each ▇▇▇▇▇▇▇▇ Loan Party and each Domestic Subsidiary of such Loan Party
or upon any of their properties, income, sales or franchises which are due and
payable have been paid. To the knowledge of the officers and directors of the
Borrower, except as may be permitted under Section 5.05 hereof, all material
taxes, assessments, fees and other governmental charges upon York Group
Parties or upon any of their properties, income, sales or franchises which are
due and payable have been paid The reserves and provisions for taxes on the
books of each ▇▇▇▇▇▇▇▇ Loan Party and each Domestic Subsidiary of such Loan
Party are adequate for all open years and for the current fiscal period in all
material respects. To the knowledge of the officers and directors of the
Borrower, the reserves and provisions for taxes on the books of York Group
Parties are adequate for all open years and for the current fiscal period in
all material respects. No ▇▇▇▇▇▇▇▇ Loan Party, no Domestic Subsidiary of such
Loan Party nor, to the knowledge of the officers and directors of the
Borrower, any York Group Party knows of any proposed additional assessment or
basis for any assessment for additional taxes (whether or not reserved
against).
3.09 Contracts.
No ▇▇▇▇▇▇▇▇ Loan Party, no Domestic Subsidiary of such Loan Party nor, to the
knowledge of the officers and directors of the Borrower, any York Group Party
is in default in any material respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
any material contractual obligation of such ▇▇▇▇▇▇▇▇ Loan Party, such Domestic
Subsidiary or such York Group Party, and no condition exists which, with the
giving of notice or the lapse of time or both, would constitute such a
default, which default or potential default would have a Material Adverse
Effect.
33
3.10 Litigation.
Except as described in Schedule 3.10 to this Agreement, there is no pending
or, to any ▇▇▇▇▇▇▇▇ Loan Party's knowledge, contemplated or threatened action,
suit or proceeding by or before any Official Body against or affecting a
▇▇▇▇▇▇▇▇ Loan Party or any Subsidiary (other than York Group Parties) of such
Loan Party which, if adversely decided, would have a Material Adverse Effect.
To the knowledge of the officers and directors of the Borrower, except as
described in Schedule 3.10 to this Agreement, there is no pending,
contemplated or threatened action, suit or proceeding by or before any
Official Body against or affecting any York Group Party which, if adversely
decided, would have a Material Adverse Effect.
3.11 Laws.
To any ▇▇▇▇▇▇▇▇ Loan Party's knowledge, no ▇▇▇▇▇▇▇▇ Loan Party nor any
Subsidiary (other than York Group Parties) of such Loan Party is in violation
of any Law, which violation could have a Material Adverse Effect. To the
knowledge of the officers and directors of the Borrower, no York Group Party
is in violation of any Law, which violation could have a Material Adverse
Effect.
3.12 ERISA.
Except as described in Schedule 3.12 to this Agreement, (a) each Plan has been
and will be maintained and funded in all material respects in accordance with
its terms and with all provisions of ERISA and other applicable Laws; (b) no
Reportable Event which could have a Material Adverse Effect has occurred and
is continuing with respect to any Plan; (c) no material liability to the PBGC
has been incurred with respect to any Plan, other than for premiums due and
payable; (d) no Plan has been terminated, no proceedings have been instituted
to terminate any Plan, and there exists no intent to terminate or institute
proceedings to terminate any Plan to the extent such termination would have a
Material Adverse Effect; (e) no withdrawal, either complete or partial, has
occurred or commenced with respect to any multi-employer Plan, and there
exists no intent to withdraw either completely or partially from any multi-
employer Plan; and (f) there has been no cessation of, and there is no intent
to cease, operations at a facility or facilities where such cessation could
reasonably be expected to result in a separation from employment of more than
20% of the total number of employees who are participants under a Plan. To
the extent that the term Plan in this Section 3.12 is referring to a Plan of a
York Group Party, this Section 3.12 is qualified by the knowledge of the
officers and directors of the Borrower with respect to such Plan.
3.13 Patents, Licenses, Franchises.
Each ▇▇▇▇▇▇▇▇ Loan Party, each Domestic Subsidiary of such Loan Party and, to
the knowledge of the officers and directors of the Borrower, each York Group
Party own or possess the legal right to use all of the patents, trademarks,
service marks, trade names, copyrights, licenses, franchises and permits and
rights with respect to the foregoing necessary to own and operate their
properties and to carry on their businesses as presently conducted and as
presently planned to be conducted without conflict with the rights of others
except to the extent that the failure to own or possess the right to use such
intellectual property would not have a Material Adverse Effect. Except as
described in Schedule 3.13 to this Agreement, no such patent, trademark,
service ▇▇▇▇, trade name, copyright, license, franchise or permit or right
with respect to any of the foregoing is of material importance to the assets,
business, operations or financial condition of any ▇▇▇▇▇▇▇▇ Loan Party or any
Domestic Subsidiary of such Loan Party and there is no reason to anticipate
34
any material liability to any ▇▇▇▇▇▇▇▇ Loan Party or any Domestic Subsidiary
of such Loan Party in respect of any claim of infringement of any of the
foregoing. To the knowledge of the officers and directors of the Borrower,
except as described in Schedule 3.13 to this Agreement, no such patent,
trademark, service ▇▇▇▇, trade name, copyright, license, franchise or permit
or right with respect to any of the foregoing is of material importance to the
assets, business, operations or financial condition of any York Group Party
and there is no reason to anticipate any material liability to York Group in
respect of any claim of infringement of any of the foregoing.
3.14 Environmental Matters.
Except as set forth in Schedule 3.14 attached hereto and made a part hereof:
(a) To the knowledge of any ▇▇▇▇▇▇▇▇ Loan Party, no ▇▇▇▇▇▇▇▇ Loan Party nor
any Domestic Subsidiary of such Loan Party is in violation of any
Environmental Laws or any rule or regulation promulgated pursuant thereto
except to the extent that such violation would not have a Material Adverse
Effect;
(b) To the knowledge of the officers and directors of the Borrower, no York
Group Party is in violation of any Environmental Laws or any rule or
regulation promulgated pursuant thereto except to the extent that such
violation would not have a Material Adverse Effect;
(c) To the knowledge of any ▇▇▇▇▇▇▇▇ Loan Party, no activity of any ▇▇▇▇▇▇▇▇
Loan Party at the ▇▇▇▇▇▇▇▇ Property is being or has been conducted in
violation of any Environmental Law and no activity of any prior owner,
operator or occupant of the ▇▇▇▇▇▇▇▇ Property was conducted in violation of
any Environmental Law except to the extent that such violation would not have
a Material Adverse Effect;
(d) To the knowledge of the officers and directors of the Borrower, no
activity of any York Group Party at the York Group Property is being or has
been conducted in violation of any Environmental Law and no activity of any
prior owner, operator or occupant of the York Group Property was conducted in
violation of any Environmental Law except to the extent that such violation
will not have a Material Adverse Effect;
(e) To the knowledge of any ▇▇▇▇▇▇▇▇ Loan Party, there are no Regulated
Substances present on, in, under, or emanating from, or emanating to, the
▇▇▇▇▇▇▇▇ Property or any portion thereof in violation of any Environmental
Law, except to the extent that such violation would not have a Material
Adverse Effect;
(f) To the knowledge of the officers and directors of the Borrower, there are
no Regulated Substances present on, in, under or emanating from, or emanating
to, the York Group Property or any portion thereof in violation of any
Environmental Law, except to the extent that such violation will not have a
Material Adverse Effect;
(g) To the knowledge of any ▇▇▇▇▇▇▇▇ Loan Party, no facility or site to which
any ▇▇▇▇▇▇▇▇ Loan Party or Domestic Subsidiary of such Loan Party, either
directly or indirectly by a third party, has sent Regulated Substances for
storage, treatment, disposal or other management has been or is being operated
in violation of Environmental Laws or pursuant to Environmental Laws is
identified or proposed to be identified on any list of contaminated properties
or other properties which pursuant to Environmental Laws are the subject of an
investigation, cleanup, removal, remediation or other response action by an
Official Body;
35
(h) To the knowledge of the officers and directors of the Borrower, no
facility or site to which any York Group Party, either directly or indirectly
by a third party, has sent Regulated Substances for storage, treatment,
disposal or other management has been or is being operated in violation of
Environmental Laws or pursuant to Environmental Laws is identified or proposed
to be identified on any list of contaminated properties or other properties
which pursuant to Environmental Laws are the subject of an investigation,
cleanup, removal, remediation or other response action by an Official Body;
(i) No portion of the ▇▇▇▇▇▇▇▇ Property is identified or to the knowledge of
any ▇▇▇▇▇▇▇▇ Loan Party proposed to be identified on any list of contaminated
properties or other properties which pursuant to Environmental Laws are the
subject of an investigation or remediation action by an Official Body, nor to
the knowledge of any ▇▇▇▇▇▇▇▇ Loan Party is any property adjoining or in the
proximity of the ▇▇▇▇▇▇▇▇ Property identified or proposed to be identified on
any such list; and
(j) No portion of the York Group Property is identified or, to the knowledge
of the officers and directors of the Borrower, proposed to be identified on
any list of contaminated properties or other properties which pursuant to
Environmental Laws are the subject of an investigation or remediation action
by an Official Body, nor. to the knowledge of the officers and directors of
the Borrower, is any property adjoining or in the proximity of the York Group
Property identified or proposed to be identified on any such list.
3.15 Use of Proceeds.
The Borrower shall use the proceeds of the Loans to (i) repay existing
Indebtedness of the Borrower, including amounts due under the Prior Loan
Agreement, (ii) for the Acquisition contemplated by the York Merger Agreement
and other Acquisitions, and (iii) for working capital and general corporate
purposes.
3.16 Margin Stock.
The Borrower will not borrow under this Agreement for the purpose of buying or
carrying any "margin stock", as such term is used in Regulation U and related
regulations of the Board of Governors of the Federal Reserve System, as
amended from time to time. The Borrower does not own any "margin stock". The
Borrower is not engaged in the business of extending credit to others for such
purpose, and no part of the proceeds of any borrowing under this Agreement
will be used to purchase or carry any "margin stock" or to extend credit to
others for the purpose of purchasing or carrying any "margin stock".
3.17 No Event of Default; Compliance with Agreements.
No event has occurred and is continuing and no condition exists which
constitutes an Event of Default or Potential Default. No Loan Party nor any
Subsidiary of any Loan Party is in violation of any term of its certificate or
articles of incorporation or bylaws, certificate of limited partnership or
partnership agreement, certificate of organization or operating agreement or
any other organizational document, as the case may be. No ▇▇▇▇▇▇▇▇ Loan Party
nor any Domestic Subsidiary of such Loan Party is in default under any
agreement, lease or instrument to which it is a party or by which it or any of
its properties (owned or leased) may be subject or bound, which default would
have a Material Adverse Effect. To the knowledge of the officers and
directors of the Borrower, no York Group Party is in default under any
agreement, lease or instrument to which it is a party or by which it or any of
its properties (owned or leased) may be subject or bound, which default would
have a Material Adverse Effect.
36
3.18 No Material Adverse Change.
Since the date of the most recent financial statements referred to in Section
3.07 hereof, there has been no Material Adverse Change.
3.19 Labor Controversies.
There are no labor controversies pending or, to the knowledge of any ▇▇▇▇▇▇▇▇
Loan Party, threatened, against any ▇▇▇▇▇▇▇▇ Loan Party or any Domestic
Subsidiary of any Loan Party which, if adversely determined, would have a
Material Adverse Effect. To the knowledge of the officers and directors of
the Borrower, there are no labor controversies pending or threatened against
any York Group Party which, if adversely determined, would have a Material
Adverse Effect.
3.20 Solvency.
After the making of the Loans, each Loan Party (i) will be able to pay its
debts as they become due, (ii) will have funds and capital sufficient to carry
on its business and all businesses in which it is about to engage, and (iii)
will own property having a value at both fair valuation and at fair saleable
value in the ordinary course of its business greater than the amount required
to pay its debts as they become due. No Loan Party was insolvent immediately
prior to the date of this Agreement and no Loan Party will be rendered
insolvent by the execution and delivery of this Agreement, the borrowing
hereunder and/or the consummation of any transactions contemplated by this
Agreement or any of the other Loan Documents.
3.21 Subsidiaries.
Schedule 3.21 to this Agreement sets forth the name of each Subsidiary of each
Loan Party and the percentage of outstanding capital stock (or other equity
interest) of such Subsidiary which is owned by such Loan Party or Subsidiary
of such Loan Party.
3.22 Governmental Regulation.
The Borrower is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment Company Act of
1940 or to any federal or state statute or regulation limiting its ability to
incur Indebtedness for borrowed money.
3.23 Accurate and Complete Disclosure; Continuing Representations and
Warranties.
No representation or warranty made by any Loan Party under this Agreement or
any of the other Loan Documents and, to the knowledge of any ▇▇▇▇▇▇▇▇ Loan
Party, no statement made by any ▇▇▇▇▇▇▇▇ Loan Party or any Subsidiary (other
than York Group Parties) of any Loan Party in any financial statement
(furnished pursuant to Section 3.07 or 5.01 or otherwise), certificate,
report, exhibit or document furnished by any ▇▇▇▇▇▇▇▇ Loan Party or any
Subsidiary (other than York Group Parties) of any Loan Party to the Agent or
any Bank pursuant to or in connection with this Agreement is false or
misleading in any material respect (including by omission of material
information necessary to make such representation, warranty or statement not
misleading). To the knowledge of the officers and directors of the Borrower,
no statement made by any York Group Party in any financial statement
(furnished pursuant to Section 3.07 or 5.01 or otherwise), certificate,
report, exhibit or document furnished by any York Group Party to the Agent or
any Bank pursuant to or in connection with this Agreement is false or
misleading in any material respect (including by omission of material
37
information necessary to make such representation, warranty or statement not
misleading). The representations and warranties set forth herein are to
survive the delivery of the Loan Documents and the making of the Loans
hereunder.
ARTICLE IV
CONDITIONS OF LENDING
The obligation of the Banks to make any Loan and the Agent to issue any Letter
of Credit is subject to the satisfaction of the following conditions:
4.01 Representations and Warranties; Events of Default and Potential
Defaults.
The representations and warranties contained in Article III shall be true and
correct in all material respects on and as of the date of each Loan with the
same effect as though made on and as of each such date. On the date on which
any Loan is made, no Event of Default and no Potential Default shall have
occurred and be continuing or exist or shall occur or exist after giving
effect to the Loan to be made on such date. Each request by the Borrower for
any Loan shall constitute a representation and warranty by the Borrower that
the conditions set forth in this Section 4.01 have been satisfied as of the
date of such request. The failure of the Agent to receive notice from the
Borrower to the contrary before such Loan is made shall constitute a further
representation and warranty by the Borrower that the conditions referred to in
this Section 4.01 have been satisfied as of the date such Loan is made.
4.02 Loan Documents.
On the Closing Date, the Loan Documents, satisfactory in terms, form and
substance to the Agent and the Banks, shall have been executed and delivered
to the Agent and the Banks and shall be in effect.
4.03 Other Documents and Conditions.
On or before the Closing Date, the following documents and conditions shall
have been delivered to the Agent or satisfied by or on behalf of any Loan
Party to the satisfaction of the Agent and, to the extent required, the Banks:
(a) Certified Copies of Organizational Documents. A copy of the articles or
certificate of incorporation, certificate of limited partnership or
certificate of organization of each Loan Party certified by the Secretary of
State of each jurisdiction of organization thereof.
(b) Good Standing and Tax Lien Certificates. A good standing certificate of
each Loan Party certifying as to the good standing and corporate, partnership
or limited liability company status of each such Loan Party in its
jurisdiction of organization; (ii) good standing/foreign qualification
certificates of each Loan Party from each additional jurisdiction identified
in Schedule 4.03 to this Agreement; and (iii) a tax lien certificate of each
Loan Party from each jurisdiction identified in the Closing Checklist with
respect to the transaction contemplated by this Agreement.
(c) Proceedings and Incumbency.
A certificate in form and substance satisfactory to the Agent, dated the
Closing Date and signed on behalf of each Loan Party by the Secretary of such
Loan Party, certifying as to (i) true copies of the certificate or articles of
incorporation, bylaws, certificate of limited partnership, partnership
38
agreement, certificate of organization, operating agreement and any other
organizational document, as the case may be, of such Loan Party, (ii) the
resolutions of the Board of Directors, partners or members of such Loan Party
authorizing the execution and delivery of this Agreement and the other Loan
Documents to which such Loan Party is a party and any other corporate,
partnership or limited liability company action taken by such Loan Party
relative to this Agreement, (iii) the names, true signatures and incumbency of
the officers, partners or members of such Loan Party authorized to execute and
deliver the Loan Documents, and (iv) all fictitious and trade names of such
Loan Party. The Agent and the Banks may conclusively rely on such
certification unless and until a later certificate revising the prior
certificate has been furnished to the Agent.
(d) Financial Statements. Financial statements, as described in Section 3.07
of this Agreement, and pro forma financial statements covering the period from
the Closing Date through the Expiry Date in form and substance satisfactory to
the Agent and the Banks.
(e) Insurance. Evidence, in form and substance satisfactory to the Agent and
the Banks, that the business and all assets of each Loan Party are adequately
insured and that the Agent on behalf of the Banks is entitled to thirty (30)
days prior notice of cancellation or modification on all such insurance
policies.
(f) Lien Searches. Copies of record searches (including UCC searches and
judgments, suits, taxes and other lien searches at the state level for each
location identified in Schedule 4.03(f) to this Agreement) evidencing that no
Liens exist against any Loan Party except those Liens permitted pursuant to
Section 6.01 hereof or those Liens that are or will be released or terminated
in connection herewith as set forth in 4.03(g) hereof.
(g) Termination Statements; Release Statements and Other Releases. Evidence
satisfactory to the Agent that all necessary termination statements, release
statements and other releases in connection with all Liens with respect to any
Loan Party that are not permitted pursuant to Section 6.01 of this Agreement
have been filed or satisfactory arrangements have been made for such filing
(including payoff letters, if applicable, in form and substance satisfactory
to the Agent).
(h) York Acquisition Documents. A fully executed copy of the York Merger
Agreement, including all schedules and exhibits with respect thereto,
certified as true and complete by the Secretary of the Borrower.
(i) Opinion of Counsel. An opinion of counsel on behalf of each Loan Party,
dated the Closing Date, in form and substance satisfactory to the Agent and
the Banks.
(j) No Material Adverse Change. No Material Adverse Change shall have
occurred since the date of the most recent financial statements delivered to
the Agent and the Banks.
(k) Repayment of Prohibited Indebtedness. All Indebtedness not permitted
under Section 6.02 including, but not limited to, amounts due under the Prior
Loan Agreement shall have been paid in full.
39
(l) Other Documents and Conditions. Such other documents and conditions as
may reasonably be requested to be submitted to the Agent or any Bank by the
terms of this Agreement or of any Loan Document or set forth on the Closing
Checklist with respect to the transactions contemplated by this Agreement.
4.04 Details, Proceedings and Documents.
All legal details and proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory to the Agent
and the Banks and the Agent and the Banks shall have received all such
counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
reasonably satisfactory to the Agent and the Banks, as the Agent and the Banks
may reasonably request from time to time.
4.05 Fees and Expenses.
The Borrower shall have paid all fees and charges as required for the Closing
and relating to the Closing, including legal fees, closing costs, filing and
notary fees and any other similar matters pertinent to the Closing.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants to the Agent and the Banks as follows:
5.01 Reporting and Information Requirements.
(a) Annual Reports. As soon as practicable, and in any event within ninety
(90) days after the close of each fiscal year of the Borrower, the Borrower
shall furnish to the Agent and each Bank Consolidated audited statements of
income, changes in shareholder's equity and cash flows of the Borrower and its
Subsidiaries for such fiscal year and a Consolidated audited balance sheet of
the Borrower and its Subsidiaries as of the close of such fiscal year, and
notes to each, all in reasonable detail, setting forth in comparative form the
corresponding figures for the preceding fiscal year, prepared in accordance
with GAAP applied on a basis consistent with that of the preceding fiscal year
(except for changes in application in which such accountants concur) with such
financial statements to be certified by an independent certified public
accounting firm of recognized standing selected by the Borrower and acceptable
to the Agent and the Banks. The certificate or report of such accountants
shall be free of exception or qualifications not reasonably acceptable to the
Agent and the Banks and shall in any event contain a written statement of such
accountants substantially to the effect that such accountants examined such
financial statements in accordance with generally accepted auditing standards.
As soon as practicable, and in any event within ninety (90) days after the
close of each fiscal year of the Borrower, the Borrower shall furnish to the
Agent and each Bank a consolidating statement of income of the Borrower and
its Subsidiaries for such fiscal year and a consolidating balance sheet of the
Borrower and its Subsidiaries as of the close of such fiscal year, all in
reasonable detail. All such financial statements shall be prepared by the
Borrower and certified by the Chief Financial Officer of the Borrower as
presenting fairly the consolidating financial position of the Borrower and its
Subsidiaries as of the end of such fiscal year and the results of their
operations for such fiscal year, in conformity with GAAP (subject to normal
and recurring year-end audit adjustments) applied in a manner consistent with
that of the most recent audited financial statements of the Borrower and its
Subsidiaries furnished to the Agent and the Banks.
40
(b) Quarterly Reports of the Borrower. As soon as practicable, and in any
event within forty-five (45) days after the close of each Fiscal Quarter of
the Borrower, the Borrower shall furnish to the Agent and each Bank a
Consolidated statement of income of the Borrower and its Subsidiaries for such
Fiscal Quarter and for the portion of the fiscal year to the end of such
Fiscal Quarter, a Consolidated statement of changes in cash flows for the
portion of the fiscal year to the end of such Fiscal Quarter and a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
close of such Fiscal Quarter, all in reasonable detail. All such financial
statements shall be prepared by the Borrower and certified by the Chief
Financial Officer of the Borrower as presenting fairly the Consolidated
financial position of the Borrower and its Subsidiaries as of the end of such
Fiscal Quarter and the results of their operations for such periods, in
conformity with GAAP (subject to normal and recurring year-end audit
adjustments) applied in a manner consistent with that of the most recent
audited financial statements of the Borrower and its Subsidiaries furnished to
the Agent and the Banks.
(c) Quarterly Compliance Certificate. The financial statements delivered
pursuant to Section 5.01(b) of this Agreement shall be accompanied by a
compliance certificate, substantially in the form of Exhibit "C" attached
hereto and made a part hereof, executed by the Chief Financial Officer of the
Borrower, stating that no Event of Default or Potential Default exists and
that the Borrower is in compliance with all applicable covenants contained in
this Agreement. Such certificate shall include all figures necessary to
calculate the Borrower's compliance with all financial covenants set forth in
this Agreement. If an Event of Default or Potential Default has occurred and
is continuing or exists, such certificate shall specify in detail the nature
and period of existence of the Event of Default or Potential Default and any
action taken or contemplated to be taken by the Borrower with respect thereto.
(d) Reports to Governmental Agencies. As soon as practicable, and in event
within ten (10) days after the filing thereof, the Borrower shall furnish to
the Agent and each of the Banks a copy of its Form 10-K and 10-Q reports, each
proxy statement, each registration statement and all other reports which the
Borrower is or may be required to file with the United States Securities and
Exchange Commission or any State Securities Commission.
(e) Annual Plan. The Borrower shall, within sixty (60) days after the
commencement of each fiscal year, submit to the Agent and each Bank
projections for the Borrower for the then current fiscal year in form
substantially similar to the form of projections provided to the Borrower's
board of directors for such fiscal year.
(f) Audit Reports. Promptly, but in no event later than thirty (30) days
after receipt thereof, the Borrower will deliver to the Agent and each Bank a
copy of each other report submitted to the Borrower by independent
accountants, including comment or management letters, in connection with any
annual, interim or special audit report made by them of the books of the
Borrower.
(g) Visitation; Audits. Each Loan Party shall permit such Persons as the
Agent or any of the Banks may designate (i) to visit and inspect any of the
properties of any Loan Party, (ii) to examine, and to make copies and extracts
from, the books and records of each Loan Party and (iii) to discuss their
affairs with their officers during normal business hours; provided, however,
41
if the Agent or any Bank retains Persons not affiliated with the Agent or such
Bank, as the case may be, to conduct any such audit, the Agent or such Bank
shall use its reasonable best efforts to ensure that such Persons are subject
to appropriate non-disclosure and confidentiality requirements for the benefit
of such Loan Party. So long as no Event of Default has occurred, the Agent or
such Bank shall provide each such Loan Party with reasonable notice of any
such visitation or inspection. Upon the occurrence and during the
continuation of an Event of Default, each Loan Party shall permit such Persons
as the Agent or any of the Banks may designate (i) to visit and inspect any of
the properties of such Loan Party, (ii) to examine, and to make copies and
extracts from, the books and records of such Loan Party and (iii) to discuss
their affairs with their officers and independent accountants at any time and
without notice; provided, however, if the Agent or such Bank retains Persons
not affiliated with the Agent or such Bank to conduct any such audit, the Bank
or the Agent shall use its reasonable best efforts to ensure that such Persons
are subject to appropriate non-disclosure and confidentiality requirements for
the benefit of such Loan Party.
(h) Notice of Event of Default. Promptly upon becoming aware of an Event of
Default or Potential Default, the Borrower will give the Agent and each Bank
notice of the Event of Default or Potential Default, together with a written
statement signed on behalf of the Borrower setting forth the details of the
Event of Default or Potential Default and any action taken or contemplated to
be taken by any Loan Party with respect thereto.
(i) Notice of Material Adverse Change. Promptly upon becoming aware thereof,
the Borrower will give the Agent and each Bank written notice with respect to
any Material Adverse Change or any development or occurrence which would have
a Material Adverse Effect.
(j) Notice of Proceedings. Promptly upon becoming aware thereof, the Borrower
will give the Bank notice of the commencement, existence or threat of all
proceedings by or before any Official Body against or affecting any Loan Party
or any of its Subsidiaries which, if adversely decided, would have a Material
Adverse Effect.
(k) Further Information. The Borrower will promptly furnish to the Agent and
each Bank such other information, and in such form, as the Agent or the Banks
may reasonably request from time to time.
5.02 Preservation of Existence and Franchises.
Each Loan Party and each of its Domestic Subsidiaries shall maintain its
organizational existence and its rights and franchises in full force and
effect in its jurisdiction of incorporation or organization, as the case may
be. No Loan Party nor any Domestic Subsidiary of a Loan Party shall change
its jurisdiction of incorporation or organization, as the case may be, without
the prior written consent of the Banks and each will qualify and remain
licensed or qualified as a foreign corporation, partnership or limited
liability company, as the case may be, in each jurisdiction in which the
failure to receive or retain such licensing or qualification would have a
Material Adverse Effect.
5.03 Insurance.
Each Loan Party shall maintain with financially sound and reputable insurers
insurance with respect to their properties and businesses and against such
liabilities, casualties and contingencies and of such types and in such
42
amounts as is reasonably satisfactory to the Agent and the Banks and as is
customary in the case of corporations or other entities engaged in the same or
similar business or having similar properties similarly situated. Each Loan
Party will cause the Agent on behalf of the Banks to be provided with thirty
(30) days advance notice of the termination of any such policy of insurance.
5.04 Maintenance of Properties.
Except to the extent that the failure to do so would not have a Material
Adverse Effect, each Loan Party will maintain or cause to be maintained in
good repair, working order and condition (ordinary wear and tear excepted),
the properties now or in the future owned, leased or otherwise possessed by
each of them and shall make or cause to be made all needful and proper
repairs, renewals, replacements and improvements to the properties so that the
business carried on in connection with the properties may be properly and
advantageously conducted at all times.
5.05 Payment of Liabilities.
Each Loan Party and each Subsidiary of a Loan Party will pay or discharge:
(a) on or prior to the date on which penalties attach, all taxes, assessments,
fees and other governmental charges or levies imposed upon it or any of its
properties or income, sales or franchises other than those contested with due
diligence, in good faith, without the incurrence of any Lien which would have
a Material Adverse Effect and for which such Loan Party or such Subsidiary has
established adequate reserves on its books;
(b) on or prior to the date when due, all lawful claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons which, if
unpaid, might result in the creation of a Lien upon any of its properties
other than those contested with due diligence, in good faith, and for which
such Loan Party or such Subsidiary has established adequate reserves on its
books and for which such Loan Party has put in place adequate bonds or other
security to cover the amount of any such Lien; and
(c) on or prior to the date when due, all other lawful claims which, if
unpaid, might result in the creation of a Lien upon any of its properties
other than those contested with due diligence, in good faith, without the
incurrence of any Lien which would have a Material Adverse Effect and for
which such Loan Party or such Subsidiary has established adequate reserves on
its books.
5.06 Financial Accounting Practices.
Each Loan Party and each of its Subsidiaries shall make and keep books,
records and accounts which, in reasonable detail, accurately and fairly
reflect its transactions and dispositions of its assets and maintain a system
of internal accounting controls sufficient to provide reasonable assurances
that (a) transactions are executed in accordance with management's general or
specific authorization, (b) transactions are recorded as necessary (i) to
permit preparation of financial statements in conformity with GAAP and (ii) to
maintain accountability for assets, (c) access to assets is permitted only in
accordance with management's general or specific authorization and (d) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
5.07 Compliance with Laws.
Each Loan Party and each of its Subsidiaries shall comply with all applicable
Laws, the non-compliance with which would have a Material Adverse Effect.
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5.08 Pension Plans.
Each Loan Party and each of its Domestic Subsidiaries shall (a) keep in full
force and effect any and all Plans which are presently in existence or may,
from time to time, come into existence under ERISA, unless such Plans can be
terminated without material liability to such Loan Party or such Domestic
Subsidiary in connection with such termination; (b) make contributions to all
of its Plans in a timely manner and in a sufficient amount to comply in all
material respects with the requirements of ERISA; (c) comply with all material
requirements of ERISA which relate to such Plans so as to preclude the
occurrence of any Reportable Event, Prohibited Transaction (other than a
Prohibited Transaction subject to an exemption under ERISA) or material
accumulated funding deficiency as such term is defined in ERISA; and (d)
notify the Agent immediately upon receipt by such Loan Party or such Domestic
Subsidiary of any notice of the institution of any proceeding or other action
which may result in the termination of any Plan. Each Loan Party shall
deliver to the Agent and each Bank, promptly after the filing or receipt
thereof, copies of all material reports or notices that such Loan Party or its
Domestic Subsidiaries files or receives under ERISA with or from the Internal
Revenue Service, the PBGC or the U.S. Department of Labor.
5.09 Continuation of and Change in Business.
The Borrower and its Subsidiaries will continue to engage generally in
business and activities substantially similar to those described in the
Borrower's Annual Report on Form 10-K for the fiscal years ended September 30,
2000 and September 30, 2001 (collectively, the "Form 10-K") and the Borrower
and its Subsidiaries will not engage in any other business or activity without
the prior written consent of the Majority Banks, which consent shall not be
unreasonably withheld, conditioned or delayed.
5.10 Use of Proceeds.
The Borrower will use the proceeds of the Loans for the purposes set forth in
Section 3.15 hereof.
5.11 Lien Searches.
The Agent may, but shall not be obligated to, conduct lien searches of each
Loan Party and its Subsidiaries, its assets and properties on an annual basis
and at such other times as the Agent, may determine to be necessary. Upon the
occurrence of an Event of Default, the Borrower shall reimburse the Agent for
the Agent's out-of-pocket costs in connection with such lien searches.
5.12 Further Assurances.
The Borrower, at its own cost and expense, will cause to be promptly and duly
taken, executed, acknowledged and delivered all such further acts, documents
and assurances as the Agent and the Banks may reasonably request from time to
time in order to carry out the intent and purposes of this Agreement more
effectively and the transactions contemplated by this Agreement.
5.13 Amendment to Schedules and Representations and Warranties.
Should any of the information or disclosures provided on any of the schedules
attached hereto and made a part hereof become incorrect in any material
respect, the Borrower shall promptly provide the Agent in writing with such
revisions to such schedule as may be necessary or appropriate to correct the
same; provided, however, that no schedule shall be deemed to have been
amended, modified or superceded by any such correction, nor shall any breach
of warranty or representation resulting from the inaccuracy or incompleteness
of any such schedule be deemed to have been cured thereby, unless and until
the Majority Banks, in their sole and absolute discretion, shall have accepted
in writing such revisions to such schedule.
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5.14 Acquisitions.
On or prior to the date of any Acquisition by any Loan Party or Subsidiary of
any Loan Party the purchase price of which is in excess of Fifteen Million and
00/100 Dollars ($15,000,000.00), such Loan Party or Subsidiary of such Loan
Party shall deliver to the Agent and the Banks (i) at least thirty (30) days
advance written notice of any such Acquisition, (ii) historical financial
information with respect to such Acquisition, (iii) summary documentation in
form substantially similar to that provided to the Borrower's board of
directors with respect to such Acquisition, (iv) pro forma financial
information and a certificate from the President or Chief Financial Officer of
the Borrower which certifies that the Borrower and its Subsidiaries are, and
following such Acquisition, will be, in compliance with all financial
covenants set forth in Section 5.15 of this Agreement and (v) such other
information reasonably requested by the Agent or any Bank with respect to the
Acquisition.
5.15 Financial Covenants.
The following financial covenants with respect to the Borrower and its
Subsidiaries, on a Consolidated basis, shall apply:
(a) Minimum Net Worth. The Borrower and its Subsidiaries shall maintain at
all times Net Worth in an amount greater than or equal to the sum of (i)
eighty percent (80%) of the Net Worth of the Borrower and its Subsidiaries on
September 30, 2001, plus (ii) fifty percent (50%) of the Net Income of the
Borrower and its Subsidiaries for the Fiscal Quarter ending December 31, 2001
and each Fiscal Quarter thereafter (excluding any net loss in any such Fiscal
Quarter).
(b) Fixed Charge Coverage Ratio. As of December 31, 2001, and as of the last
day of each Fiscal Quarter thereafter, for the period equal to the four (4)
consecutive Fiscal Quarters then ending, the Borrower and its Subsidiaries
shall maintain a Fixed Charge Coverage Ratio greater than or equal to 1.25 to
1.00.
(c) Leverage Ratio. As of December 31, 2001, and as of the last day of each
Fiscal Quarter thereafter, for the period equal to the four (4) consecutive
Fiscal Quarters then ending, the Borrower and its Subsidiaries shall maintain
a Leverage Ratio less than or equal to 2.50 to 1.0.
(d) Interest Coverage Ratio. As of December 31, 2001, and as of the last day
of each Fiscal Quarter thereafter, for the period equal to the four (4)
consecutive Fiscal Quarters then ending, the Borrower and its Subsidiaries
shall maintain an Interest Coverage Ratio greater than or equal to 3.00 to
1.0.
5.16 Subsidiary Guaranty Agreements.
Each Domestic Subsidiary of a Loan Party created or acquired subsequent to the
Closing Date shall immediately execute and deliver to the Agent a Guaranty
Agreement, along with such corporate governance and authorization documents as
may be deemed reasonably necessary or advisable by the Agent and the Banks;
provided, however, that a Domestic Subsidiary shall not be required to execute
such Guaranty Agreement so long as (i) the total assets of such Domestic
Subsidiary are less than Ten Million and 00/100 Dollars ($10,000,000.00), and
(ii) the aggregate of the total assets of all such Domestic Subsidiaries with
total asset values of less than Ten Million and 00/100 Dollars
($10,000,000.00) does not exceed the aggregate amount of Thirty Million and
00/100 Dollars ($30,000,000.00). In the event that the total assets of any
Subsidiary which is not a Domestic Subsidiary or a Guarantor are at any time
45
equal to or greater than Twenty Million and 00/100 Dollars ($20,000,000.00),
the Borrower shall provide the Agent and the Banks with prompt written notice
of such asset value.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants to the Agent and the Banks as follows:
6.01 Liens.
No Loan Party nor any Subsidiary of a Loan Party shall, at any time, create,
incur, assume or suffer to exist any Lien on any of its assets or property,
tangible or intangible now owned or hereafter acquired, or agree to become
liable to do so, except:
(a) Liens of any Loan Party (other than York Group) or any Subsidiary of a
Loan Party (other than York Group) existing on the Closing Date and described
in Schedule 6.01 to this Agreement;
(b) Liens granted in favor of the Agent on behalf of the Banks;
(c) Liens arising from taxes, assessments, charges, levies or claims described
in Section 5.05 of this Agreement;
(d) pledges or deposits under worker's compensation, unemployment insurance
and social security laws, or in connection with or to secure the performance
of bids, tenders, contracts (other than for the repayment of borrowed money)
or leases or to secure statutory obligations, surety or appeal bonds or other
pledges or deposits of like nature used in the ordinary course of business;
(e) any unfiled materialmen's, mechanic's, workmen's, and repairmen's Liens
arising in the ordinary course of business (provided, that, except as
otherwise set forth in Section 5.05(b) hereof, if such a Lien shall be
perfected, it shall be discharged of record immediately by payment, bond or
otherwise);
(f) Purchase Money Security Interests to secure Indebtedness permitted under
Section 6.02(d); provided, however, that such security interests shall be
limited solely to the equipment purchased with the proceeds of such
Indebtedness;
(g) reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other similar title exceptions
or encumbrances affecting real property, provided that they do not,
individually or in the aggregate, diminish the fair market value of the real
property affected thereby or the utility of such real property for the
purposes for which such property is presently devoted;
(h) attachment, judgment or other similar Liens arising in connection with a
proceeding before an Official Body and which do not cause an Event of Default
to occur; and
(i) Liens of York Group existing on the Closing Date which, individually or in
the aggregate, do not have a Material Adverse Effect; provided, however, that
the aggregate amount secured by such Liens does not exceed Five Million and
00/100 Dollars ($5,000,000.00).
46
6.02 Indebtedness.
No Loan Party nor any Subsidiary of a Loan Party shall, at any time, create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party (other than York Group) or any Subsidiary
of a Loan Party (other than York Group) existing on the Closing Date and
described in Schedule 6.02 to this Agreement; provided, however, that none of
such Indebtedness shall be increased, extended, renewed, refinanced or
materially modified without the prior written consent of the Majority Banks,
except for those renewals or refinancings which do not increase the interest
rate charged thereon or the principal amount thereof;
(b) Indebtedness under this Agreement, the Notes or the Loan Documents;
(c) current accounts payable, accrued expenses and other expenses arising out
of transactions (other than borrowing) in the ordinary course of business;
(d) Capitalized Lease Obligations or Indebtedness secured by Purchase Money
Security Interests arising after the date of this Agreement for purchases or
leases of equipment in the ordinary course of business and in amounts which
shall not exceed Ten Million and 00/100 Dollars ($10,000,000.00) in the
aggregate, at any time;
(e) unsecured Indebtedness arising after the date of this Agreement evidenced
by promissory notes in an aggregate amount not exceeding One Million and
00/100 Dollars ($1,000,000.00) at any time;
(f) Indebtedness incurred pursuant to Section 6.04(c) hereof; and
(g) Indebtedness of York Group existing on the Closing Date which,
individually or in the aggregate, does not have a Material Adverse Effect;
provided, however, that (i) the aggregate amount of such Indebtedness shall
not exceed Five Million and 00/100 Dollars ($5,000,000.00) and (ii) none of
such Indebtedness shall be increased, extended, renewed, refinanced or
materially modified without the prior written consent of the Majority Banks,
except for those renewals or refinancings which do not increase the interest
rate charged thereon or the principal amount thereof.
6.03 Guarantees and Contingent Liabilities.
No Loan Party nor any Subsidiary of a Loan Party shall, at any time directly
or indirectly become or be liable in respect of any Guaranty, or assume,
guarantee, become surety for, endorse or otherwise agree, become or remain
directly or contingently liable upon or with respect to any obligation or
liability of any other Person other than the Borrower or any of its
Subsidiaries, except:
(a) indemnities of directors and officers in their capacities as such, as
permitted by Law;
(b) endorsements on negotiable or other instruments in any amount for deposit
or collection or similar transactions in the ordinary course of their
businesses;
(c) those Guaranty and other such obligations of any Loan Party (other than
York Group) or any Subsidiary of a Loan Party (other than York Group) existing
on the Closing Date and set forth on Schedule 6.03 attached hereto and made a
part hereof;
47
(d) additional Guaranty and other such obligations arising after the date of
this Agreement with respect to obligations or liabilities in an aggregate
amount which shall not exceed Ten Million and 00/100 Dollars ($10,000,000.00)
at any time; and
(e) Guaranty or other obligations of York Group existing on the Closing Date
which, individually or in the aggregate, do not have a Material Adverse
Effect; provided, however, that the aggregate amount of such Guaranty or other
obligations does not exceed Five Million and 00/100 Dollars ($5,000,000.00).
6.04 Loans and Investments.
No Loan Party nor any Subsidiary of a Loan Party shall at any time make any
loan or advance to, or purchase, acquire or own any stock, bonds, notes or
securities of, or any partnership (whether general or limited) or limited
liability company interest in, or any other investment or interest in, or make
any capital contribution or loan to, any other Person or agree, or become
liable to do any of the foregoing, except:
(a) equity investments in the Subsidiaries as set forth on Schedule 3.21
hereof;
(b) Acquisitions permitted under Section 6.05 hereof;
(c) loans to the Borrower from any Subsidiary of the Borrower;
(d) loans to and investments in any Loan Party;
(e) loans to and investments in Subsidiaries that are not Loan Parties,
provided, however, that the aggregate amount of all such loans and investments
arising after the date of this Agreement shall not exceed Ten Million and
00/100 Dollars ($10,000,000.00);
(f) other loans and investments of any Loan Party (other than York Group) or
any Subsidiary of a Loan Party (other than York Group) existing on the Closing
Date and set forth on Schedule 6.04 attached hereto and made a part hereof;
(g) investments in (i) direct obligations of the United States of America or
any agency thereof maturing in twelve (12) months or less from the date of
acquisition, (ii) obligations guaranteed by the United States of America
maturing in twelve (12) months or less from the date of acquisition, (iii)
prime commercial paper maturing in one hundred eighty (180) days or less
(rated by ▇▇▇▇▇'▇ Investors Service, Inc. at not less than A-1 and by Standard
& Poor's Corporation at not less than P-1) on the date of acquisition and (iv)
demand deposits, time deposits or certificates of deposit maturing within one
(1) year issued by any Bank or any commercial bank whose obligations are rated
A-1, A or the equivalent or better by Standard & Poor's Corporation on the
date of acquisition; and
(h) loans and investments of York Group existing on the Closing Date which,
individually or in the aggregate, do not have a Material Adverse Effect;
provided, however, that the aggregate amount of such loans and investments
does not exceed Five Million and 00/100 Dollars ($5,000,000.00).
6.05 Acquisitions.
No Loan Party nor any Subsidiary of a Loan Party shall make an Acquisition or
enter into any agreement with respect thereto, except Acquisitions of Persons
in businesses substantially similar to those described in the Form 10-K so
long as each of the following conditions are satisfied:
48
(a) such Loan Party or Subsidiary of such Loan Party shall have delivered the
notice, documentation and financial information as required by the provisions
of Section 5.14 hereof;
(b) no Event of Default or Potential Default shall exist prior to such
Acquisition and no Event of Default or Potential Default shall occur or exist
as a result of such Acquisition;
(c) the total consideration for any one such Acquisition shall not exceed
Thirty Million and 00/100 Dollars ($30,000,000.00);
(d) the pro forma Leverage Ratio after giving effect to such Acquisition shall
not exceed 1.75 to 1.0; and
(e) with respect to the acquisition of stock or other equity interest, if so
required by Section 5.16 hereof, the acquired Person shall promptly become a
Guarantor.
6.06 Self-Dealing.
No Loan Party nor any Subsidiary of a Loan Party shall enter into or carry out
any transaction with (including, without limitation, purchasing property or
services from or selling property or services to) any Affiliate except:
(a) the Borrower may allocate corporate and division expenses to any
Subsidiary on a monthly basis in the ordinary course of its business
consistent with past practices;
(b) shareholders, officers, directors and employees of a Loan Party or
Subsidiary of a Loan Party may render services to such Loan Party or
Subsidiary for compensation at substantially the same or better rates
generally paid to third parties engaged in the same or similar businesses for
the same or similar services; and
(c) a Loan Party or Subsidiary of a Loan Party may enter into and carry out
other transactions with Affiliates in the ordinary course of business,
pursuant to the reasonable requirements of its business, upon terms that are
fair and reasonable and no less favorable to the Loan Party or Subsidiary than
the Loan Party or Subsidiary would obtain in a comparable arm's length
transaction.
6.07 Disposition of Assets.
No Loan Party nor any Subsidiary of a Loan Party shall sell, convey, pledge,
assign, lease (except for leases entered into in the ordinary course of
business), abandon or otherwise transfer or dispose of, voluntarily or
involuntarily (any of the foregoing being referred to in this Section as a
transaction and any set of related transactions constituting but a single
transaction) any of its properties or assets whether tangible or intangible
(including stock of Subsidiaries) except for (i) sales or dispositions of
obsolete equipment and sales of inventory in the ordinary course of business,
(ii) the sale, transfer or lease of assets by a Subsidiary of a Loan Party to
a Loan Party, (iii) the sale or disposition of certain real property located
in Lawrenceville, Georgia, Richmond, Indiana, Portland, Oregon and Aiken,
South Carolina, (iv) the sale or disposition of Puget Sound Casket Co. and
West Point Casket Co. or (v) so long as no Event of Default or Potential
Default shall have occurred, other sales or dispositions of assets in the
ordinary course of business the fair market value of which does not exceed in
the aggregate Ten Million and 00/100 Dollars ($10,000,000.00) at any time.
49
6.08 Margin Stock.
The Borrower will not use the proceeds of any Loan, directly or indirectly, to
purchase any "margin stock" (within the meaning of Regulations U, G, T or X of
the Board of Governors of the Federal Reserve System) or to extend credit to
others for the purpose of purchasing or carrying, directly or indirectly, any
margin stock.
6.09 Partnerships; Mergers or Consolidation.
No Loan Party nor any Subsidiary of a Loan Party shall form a partnership,
limited liability company or joint venture or merge or consolidate with or
into any other Person, or agree to do any of the foregoing, except that (i) a
Loan Party may merge or consolidate with another Loan Party provided that if
the Borrower is a party to such merger or consolidation, the Borrower is the
surviving entity and (ii) each Loan Party and its Subsidiary may complete
Acquisitions permitted under Section 6.05 hereof.
6.10 Double Negative Pledge.
No Loan Party nor any Subsidiary of a Loan Party shall enter into any
agreement with any Person, other than in connection with this Agreement, which
prohibits or limits the ability of such Loan Party or Subsidiary to create,
incur, assume or suffer to exist any Lien upon or with respect to any property
or assets of any kind, real or personal, tangible or intangible (including,
but not limited to, stock or other equity interest) of such Loan Party or
Subsidiary, whether now owned or hereafter acquired or created; provided that
a Loan Party or a Subsidiary of a Loan Party may enter into such agreement
which prohibits Liens on property or assets which are subject to any Purchase
Money Security Interests permitted by Section 6.01(f) hereof.
6.11 Fiscal Year; Tax Designation.
No Loan Party nor Subsidiary of a Loan Party shall change its fiscal year or
elect to be designated as an entity other than its current tax designation,
except for "check the box" elections for United States tax purposes.
ARTICLE VII
DEFAULTS
7.01 Events of Default.
An Event of Default means the occurrence or existence of one or more of the
following events or conditions (whatever the reason for such Event of Default
and whether voluntary, involuntary or effected by operation of Law):
(a) The Borrower shall fail to pay principal on any of the Loans on the date
due; or
(b) The Borrower shall fail to pay interest on the Loans or any fees payable
pursuant to Article II of this Agreement within five (5) days of the date such
interest or fees are due; or
(c) Any Loan Party shall fail to pay any other fee or other amount payable
pursuant to this Agreement, the Notes or any of the other Loan Documents
within ten (10) days after written notice to such Loan Party by the Agent or
any Bank; or
50
(d) Any representation or warranty made by any Loan Party under this Agreement
or any of the other Loan Documents or any material statement made by any Loan
Party in any financial statement, certificate, report, exhibit or document
furnished by any Loan Party to the Agent or any Bank pursuant to this
Agreement or the other Loan Documents shall prove to have been false or
misleading in any material respect as of the time made; or
(e) The Borrower shall default in the performance or observance of any
covenant contained in Article V (other than the covenants contained in
Sections 5.01(a), 5.01(b), 5.01(c), 5.01(d), 5.01(e), 5.04, 5.06, 5.07, 5.08,
5.09, 5.11, 5.12 and 5.13) or Article VI of this Agreement; or
(f) The Borrower shall default in the performance or observance of any
covenant contained in Sections 5.01(a), 5.01(b), 5.01(c), 5.01(d), 5.01(e),
5.04, 5.06, 5.07, 5.08, 5.09, 5.11, 5.12 or 5.13 (not constituting an Event of
Default under any other provision of this Section 7.01) and such default shall
continue for a period of thirty (30) consecutive days; or
(g) Any Loan Party shall default in the performance or observance of any
other covenant, agreement or duty under this Agreement, any Note or any other
Loan Document (not constituting an Event of Default under any other provision
of this Section 7.01) and such default shall continue for a period of thirty
(30) consecutive days; or
(h) Any Loan Party or any Subsidiary of a Loan Party shall (i) default (as
principal or guarantor or other surety) in any payment of principal of or
interest on any obligation (or set of related obligations) for borrowed money
in excess of Ten Million and 00/100 Dollars ($10,000,000.00) beyond any period
of grace with respect to the payment or, if any such obligation (or set of
related obligations) is or are payable or repayable on demand, fail to pay or
repay such obligation or obligations when demanded, or (ii) default in the
observance of any other covenant, term or condition contained in any agreement
or instrument by which such an obligation (or set of related obligations) is
or are created, secured or evidenced, if the effect of such default is to
cause, or permit the holder or holders of such obligation or obligations (or a
trustee or agent on behalf of such holder or holders) to cause, all or part of
such obligation or obligations to become due before its or their otherwise
stated maturity; or
(i) One or more final judgments for the payment of money in excess of One
Million and 00/100 Dollars ($1,000,000.00) shall have been entered against any
Loan Party or any Subsidiary of a Loan Party and shall remain undischarged or
unstayed for a period of thirty (30) consecutive days; or
(j) A writ or warrant of attachment, garnishment, execution, distraint or
similar process involving an aggregate amount of money in excess of One
Hundred Thousand and 00/100 Dollars ($100,000.00) shall have been issued
against any Loan Party or Subsidiary of a Loan Party or any of its properties
and shall remain undischarged or unstayed for a period of thirty (30)
consecutive days; or
(k) The Majority Banks shall have reasonably determined in good faith that a
Material Adverse Change has occurred or that the prospect of payment or
performance of any covenant, agreement or duty under this Agreement, the Notes
or the other Loan Documents is impaired; or
51
(l) A Change of Control shall occur; or
(m) (i) A Termination Event with respect to a Plan shall occur, (ii) any
Person shall engage in any Prohibited Transaction or Reportable Event
involving any Plan, (iii) an accumulated funding deficiency, whether or not
waived, shall exist with respect to any Plan, (iv) a Loan Party or any ERISA
Affiliate shall be in "Default" (as defined in Section 4219(c)(5) of ERISA)
with respect to payments due to a multi-employer Plan resulting from any such
Loan Party's or any such ERISA Affiliate's complete or partial withdrawal (as
described in Section 4203 or 4205 of ERISA) from such Plan or (v) any other
event or condition shall occur or exist with respect to a single employer
Plan, except that no such event or condition shall constitute an Event of
Default if it, together with all other events or conditions at the time
existing, would not subject a Loan Party or any Subsidiary of a Loan Party to
any tax, penalty, debt or liability which, alone or in the aggregate, would
have a Material Adverse Effect; or
(n) A proceeding shall be instituted in respect of a Loan Party or any
Subsidiary of a Loan Party:
(i) seeking to have an order for relief entered in respect of such Loan Party
or Subsidiary of such Loan Party, or seeking a declaration or entailing a
finding that such Loan Party or Subsidiary of such Loan Party is insolvent or
a similar declaration or finding, or seeking dissolution, winding-up, charter
revocation or forfeiture, liquidation, reorganization, arrangement,
adjustment, composition or other similar relief with respect to such Loan
Party or Subsidiary of such Loan Party, its assets or debts under any Law
relating to bankruptcy, insolvency, relief of debtors or protection of
creditors, termination of legal entities or any other similar Law now or
hereinafter in effect which shall not have been dismissed or stayed within
thirty (30) days after such proceedings were instituted; or
(ii) seeking appointment of a receiver, trustee, custodian, liquidator,
assignee, sequestrator or other similar official for a Loan Party or a
Subsidiary of a Loan Party for all or any substantial part of its property
which shall not have been dismissed or stayed within thirty (30) days after
such proceedings were instituted; or
(o) A Loan Party or any Subsidiary of a Loan Party shall become insolvent;
shall become generally unable to pay its debts as they become due; shall
voluntarily suspend transaction of its business; shall make a general
assignment for the benefit of creditors; shall institute a proceeding
described in Section 7.01(n)(i) of this Agreement or shall consent to any
order for relief, declaration, finding or relief described in Section
7.01(n)(i) of this Agreement; shall institute a proceeding described in
Section 7.01(n)(ii) of this Agreement or shall consent to the appointment or
to the taking of possession by any such official of all or any substantial
part of its property whether or not any proceeding is instituted; shall
dissolve, wind-up or liquidate itself or any substantial part of its property;
or shall take any action in furtherance of any of the foregoing.
7.02 Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (c) through (m) of Section
7.01 of this Agreement occurs, the Agent and the Banks will be under no
further obligation to make Loans or issue Letters of Credit and may at the
option of the Majority Banks (i) demand the unpaid principal amount of the
Notes, interest accrued on the unpaid principal amount thereof and all other
amounts owing by the Borrower under this Agreement, the Notes and the other
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Loan Documents to be immediately due and payable without presentment, protest
or further demand or notice of any kind, all of which are expressly waived,
and an action for any amounts due shall accrue immediately; and (ii) require
the Borrower to, and the Borrower shall thereupon, deposit in a non-interest
bearing account with the Agent, as cash collateral for its obligations under
the Loan Documents, an amount equal to one hundred five percent (105%) of the
Letter of Credit Reserve, and the Borrower hereby pledges to the Agent and the
Banks, and grants to the Agent for the benefit of the Banks a security
interest in such account and all such cash as security for such obligations of
the Borrower.
(b) If an Event of Default specified in subsections (a), (b), (n) or (o) of
Section 7.01 of this Agreement occurs and continues or exists, the Agent and
the Banks will be under no further obligation to make Loans or issue Letters
of Credit and the unpaid principal amount of the Notes, interest accrued
thereon and all other amounts owing by the Borrower under this Agreement, the
Notes and the other Loan Documents shall automatically become immediately due
and payable without presentment, demand, protest or notice of any kind, all of
which are expressly waived, and an action for any amounts due shall accrue
immediately.
7.03 Set-Off.
If the unpaid principal amount of the Notes, interest accrued on the unpaid
principal amount thereof or other amount owing by any Loan Party under this
Agreement, the Notes or the other Loan Documents shall have become due and
payable (on demand, at maturity, by acceleration or otherwise), each of the
Banks, any assignee of the Banks and the holder of any participation in any
Loan will each have the right, in addition to all other rights and remedies
available to it, without notice to such Loan Party, to set-off against and to
appropriate and apply to such due and payable amounts any Indebtedness owing
to, and any other funds held in any manner for the account of, such Loan Party
by such Bank, by such assignee or by such holder including, without
limitation, all funds in all deposit accounts (whether time or demand, general
or special, provisionally credited or finally credited, or otherwise) now or
in the future maintained by such Loan Party with such Bank, assignee or
holder. The Borrower consents to and confirms the foregoing arrangements and
confirms the Banks' rights, such assignee's rights and such holder's rights of
banker's lien and set-off. Nothing in this Agreement will be deemed a waiver
or prohibition of or restriction on the Banks' rights, such assignee's rights
or any such holder's rights of banker's lien or set-off.
7.04 Equalization.
Each Bank agrees with the other Banks that if, at any time, it shall obtain
any Advantage over the other Banks or any thereof in respect of the
Indebtedness of the Borrower to the Banks, it shall purchase from the other
Banks, for cash and at par, such additional participation in the Indebtedness
of the Borrower to the Banks as shall be necessary to nullify the Advantage.
If any such Advantage resulting in the purchase of an additional participation
as aforesaid shall be recovered in whole or in part from the Bank receiving
the Advantage, each such purchase shall be rescinded and the purchase price
restored (but without interest unless the Bank receiving the Advantage is
required to pay interest on the Advantage to the Person recovering the
Advantage from such Bank) ratably to the extent of the recovery. Each Bank
agrees with the other Banks that if it, at any time, shall receive any payment
for or on behalf of the Borrower on any Indebtedness of the Borrower to that
Bank by reason of offset of any deposit or other Indebtedness of the Borrower
53
to the Banks, it will apply such payment first to any and all Indebtedness of
the Borrower to the Banks pursuant to this Agreement (including, without
limitation, any participation purchased or to be purchased pursuant to this
Section or any other Section of this Agreement). The Borrower agrees that any
Bank so purchasing a participation from the other Banks or any thereof
pursuant to this Section may exercise all of its rights of payment (including
the right of setoff) with respect to such participation as fully as if such
Bank were a direct creditor of the Borrower in the amount of such
participation.
7.05 Other Remedies.
The remedies in this Article VII are in addition to, not in limitation of, any
other right, power, privilege or remedy, either at Law, in equity or
otherwise, to which the Banks may be entitled. The Agent shall exercise the
rights under this Article VII and all other collection efforts on behalf of
the Banks and no Bank shall act independently with respect thereto, except as
otherwise specifically set forth in this Agreement.
ARTICLE VIII
THE AGENT; THE DOCUMENTATION AGENT; ASSIGNMENTS; PARTICIPATIONS
8.01 Appointment and Authorization; No Liability.
The Banks authorize Citizens and PNC and Citizens and PNC hereby agree to act
as agent and documentation agent, respectively, for the Banks in respect of
this Agreement and the other Loan Documents upon the terms and conditions set
forth in this Agreement. Each Bank hereby irrevocably appoints and authorizes
the Agent and the Documentation Agent to take such action as agent on its
behalf and to exercise such powers hereunder as are expressly delegated to the
Agent or the Documentation Agent, as the case may be, by the terms of this
Agreement and any of the other Loan Documents, together with such powers as
are reasonably incidental thereto; provided that no duties or responsibilities
not expressly assumed herein or therein shall be implied to have been assumed
by the Agent or the Documentation Agent. The relationship between the Agent
and the Banks and the relationship between the Documentation Agent and the
Banks are and shall be that of agent and principal only, and nothing contained
in this Agreement or any of the other Loan Documents shall be construed to
constitute the Agent or the Documentation Agent as a trustee for any Bank.
Neither the Agent, the Documentation Agent nor any of their respective
shareholders, directors, officers, attorneys or employees nor any other Person
assisting them in their duties nor any agent or employee thereof, shall (a) be
liable for any waiver, consent or approval given or action taken or omitted to
be taken by it or them hereunder or under any of the Loan Documents or in
connection herewith or therewith or be responsible for the consequences of any
oversight or error of judgment whatsoever, or (b) be liable to the Borrower
for consequential damages resulting from any breach of contract, tort or other
wrong in connection with the negotiation, documentation, administration or
collection of the Loans or any of the Loan Documents, except with respect to
(a) and (b) hereof, to the extent of its or their willful misconduct or gross
negligence as finally determined by a court of competent jurisdiction.
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8.02 Employees and Agents; Documentation Agent.
The Agent may exercise its powers and execute its duties by or through
employees or agents and shall be entitled to take, and to rely on, advice of
counsel concerning all matters pertaining to its rights and duties under this
Agreement and the other Loan Documents and shall not be liable for action
taken or suffered in good faith by it in accordance with the opinion of such
counsel. The Agent may utilize the services of such Persons as the Agent in
its sole discretion may determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower and if not paid by the Borrower
shall be paid by the Banks based upon their respective Commitment Percentages.
Notwithstanding anything that may be contained in this Agreement to the
contrary, the Documentation Agent shall have no duties or obligations
whatsoever as documentation agent with respect to this Agreement or the other
Loan Documents, provided that the Documentation Agent may perform such of the
duties of Agent under this Agreement and the other Loan Documents as are
expressly delegated in writing to the Documentation Agent by the Agent or all
of the Banks and accepted in writing by the Documentation Agent, and in so
acting the Documentation Agent may act by or through employees or agents and
shall be entitled to advice of counsel concerning all matters pertaining to
its duties under this Agreement and the other Loan Documents. In connection
with the performance by the Documentation Agent of duties of the Agent, to the
extent so expressly delegated in accordance herewith, the Documentation Agent
shall be deemed to have all the rights, responsibilities, discretion,
limitations on actions, exculpation and indemnification applicable to the
Agent under such circumstances.
8.03 No Representations; Each Bank's Independent Investigation.
Neither the Agent nor the Documentation Agent shall be responsible for (a) the
execution, validity or enforceability of this Agreement, the Notes, any of the
other Loan Documents or any instrument at any time constituting, or intended
to constitute, collateral security for the Notes, (b) the value of any such
collateral security, (c) the validity, enforceability or collectibility of any
such amounts owing with respect to the Notes, or (d) any recitals or
statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it
by or on behalf of any Loan Party. Neither the Agent nor the Documentation
Agent shall be bound (a) to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or
in any instrument at any time constituting, or intended to constitute,
collateral security for the Indebtedness evidenced by the Notes or (b) to
ascertain whether any notice, consent, waiver or request delivered to it by
any Loan Party or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. Neither the Agent nor the
Documentation Agent has made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Banks
with respect to the creditworthiness, financial condition or any other
condition of any Loan Party or with respect to the statements contained in any
information memorandum furnished in connection herewith or in any other oral
or written communication between the Agent and such Bank or the Documentation
Agent and such Bank. Each Bank acknowledges that it has, independently
without reliance upon the Agent, the Documentation Agent or any other Bank,
and based upon such information and documents as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and
agrees that neither the Agent nor the Documentation Agent has a duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto (other than such
notices as may be expressly required to be given by the Agent to the Banks
hereunder).
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8.04 Payments to Banks.
(a) As between the Agent and the Borrower, a payment by the Borrower to the
Agent hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees to promptly, but in
any event not later than the end of the following Business Day, distribute to
each Bank such Bank's Pro Rata Share of payments received by the Agent for the
account of the Banks in immediately available funds.
(b) If in the opinion of the Agent the distribution of any amount received by
it in such capacity hereunder, under the Notes or under any of the other Loan
Documents, could reasonably be expected to involve it in liability, it may
refrain from making distribution until its right to make distribution shall
have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received by the Agent for
the account of the Banks is to be distributed, the Agent shall distribute to
each Bank such Bank's Pro Rata Share of the amount so adjudged to be
distributed or in such manner as shall be determined by such court, together
with interest thereon, in respect of each day during the period commencing on
the date such amount was made available to the Agent and ending on the date
the Agent distributes such amount, at a rate per annum equal to the interest
rate earned by the Agent on such amount during such period. If a court of
competent jurisdiction shall adjudge that any amount received and distributed
by the Agent is to be repaid, each Person to whom any such distribution shall
have been made shall either repay to the Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
(c) Notwithstanding anything to the contrary contained in this Agreement or
any of the other Loan Documents, any Bank that fails (i) to make available to
the Agent its Pro Rata Share of any Loan that the Agent made on its behalf or
(ii) to comply with the provisions of Section 7.04 with respect to it
obtaining an Advantage, in each case as, when and to the full extent required
by the provisions of this Agreement, shall be deemed delinquent and shall not
be entitled to vote on any matters until such time as such delinquency is
cured. Such Bank shall be deemed to have assigned any and all payments due it
from the Borrower, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining Banks for application to, and reduction of, their
respective Pro Rata Shares of all outstanding Loans. Such Bank hereby
authorizes the Agent to distribute such payments to the other Banks in
proportion to their respective Pro Rata Shares of all outstanding Loans. Such
Bank shall be deemed to have satisfied in full a delinquency when and if the
Banks' respective Pro Rata Shares of all outstanding Loans have returned to
those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
8.05 Note Holders.
The Agent may treat the payee of any Note as the holder thereof until written
notice of transfer shall have been filed with it signed by such payee and in
form satisfactory to the Agent.
8.06 Documents.
The Agent shall not be under any duty to examine into or pass upon the
validity, effectiveness, genuineness or value of any Loan Documents or any
other document furnished pursuant hereto or in connection herewith or the
value of any collateral obtained hereunder, and the Agent shall be entitled to
assume that the same are valid, effective and genuine and what they purport to
be.
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8.07 Agents and Affiliates.
With respect to the Loans, the Agent shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
the agent, and the Agent and its affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Borrower or any
of its Affiliates.
8.08 Indemnification of Agent.
The Banks ratably agree to indemnify and hold harmless the Agent (to the
extent not indemnified by the Borrower) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Agent in its capacity
as agent in any way relating to or arising out of this Agreement or any Loan
Document or any action taken or omitted by the Agent with respect to this
Agreement or any Loan Document, provided that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorney fees) or disbursements
resulting from the Agent's gross negligence or willful misconduct as finally
determined by a court of competent jurisdiction. The obligations of the Banks
under this Section 8.08 shall survive the payment in full of all amounts due
pursuant to this Agreement or any other Loan Document and the termination of
this Agreement.
8.09 Successor Agent.
The Agent or the Documentation Agent may resign as agent or documentation
agent hereunder by giving not fewer than thirty (30) days' prior written
notice to the Borrower and the Banks. If the Agent or the Documentation Agent
shall resign under this Agreement, then either (a) the Majority Banks shall
appoint from among the Banks a successor agent or documentation agent, as the
case may be, for the Banks or (b) if a successor agent or documentation agent,
as the case may be, shall not be so appointed and approved within the thirty
(30) day period following the Agent's or the Documentation Agent's notice to
the Banks of its resignation, as the case may be, then the Agent or the
Documentation Agent shall appoint a successor agent or documentation agent, as
the case may be, who shall serve as agent until such time as the Majority
Banks appoint a successor agent or documentation agent pursuant to clause (a).
Upon its appointment, such successor agent shall succeed to the rights, powers
and duties as agent, and the term "Agent" shall mean such successor effective
upon its appointment, and the former agent's rights, powers and duties as
agent shall be terminated without any other or further act or deed on the part
of such former agent or any of the parties to this Agreement. Upon its
appointment, such successor documentation agent shall succeed to the rights,
powers and duties as documentation agent, and the term "Documentation Agent"
shall mean such successor effective upon its appointment, and the former
documentation agent's rights, powers and duties as documentation agent shall
be terminated without any other or further act or deed on the part of such
documentation agent or any of the parties to this Agreement.
8.10 Knowledge of Default.
It is expressly understood and agreed that if the Agent has not been notified
by the Borrower in writing that an Event of Default or Potential Default has
occurred, the Agent shall be entitled to assume that no Event of Default or
Potential Default has occurred and is continuing unless the Agent has been
notified by a Bank in writing that such Bank considers that an Event of
Default or Potential Default has occurred and is continuing and specifying the
nature thereof.
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8.11 Action by Agent.
So long as the Agent shall be entitled, pursuant to Section 8.10 hereof, to
assume that no Event of Default or Potential Default shall have occurred and
be continuing, the Agent shall be entitled to use its discretion with respect
to exercising or refraining from exercising any rights which may be vested in
it by, or with respect to taking or refraining from taking any action or
actions which it may be able to take under or in respect of, this Agreement.
The Agent shall incur no liability under or in respect of this Agreement by
acting upon any notice, certificate, warranty or other paper or instrument
believed by it to be genuine or authentic or to be signed by the proper party
or parties, or with respect to anything which it may do or refrain from doing
in the reasonable exercise of its judgment.
8.12 Notification of Potential Defaults and Events of Defaults.
Each Bank hereby agrees that, upon learning of the existence of a Potential
Default or Event of Default, it shall promptly notify the Agent thereof. In
the event that the Agent receives notice of an Event of Default or Potential
Default, the Agent shall promptly notify all of the Banks and shall take such
action and assert such rights under this Agreement as the Majority Banks shall
direct and the Agent shall promptly inform the Banks in writing of the action
taken. The Agent may take such action and assert such rights as it deems to
be advisable, in its discretion, for the protection of the interests of the
holders of the Notes.
8.13 Declaration of Invalidation.
Each Bank agrees that, to the extent that any payments received by any Bank
from any Loan Party or otherwise on account of the Loans are subsequently
invalidated, declared to be fraudulent or preferential, set aside or
judicially required to be repaid to a debtor-in-possession, trustee, receiver,
custodian or any other Person in connection with any proceeding referred to in
Section 7.01(n) hereof or any similar cause of action ("Preference"), then, to
the extent of such Preference, each Bank shall, upon demand, reimburse the
Bank subject to such Preference in the amount necessary to cause each Bank to
be affected by such Preference in proportion to its Pro Rata Share of the
Loans.
8.14 Pro Rata Portion, Pari Passu and Equal.
The Pro Rata Share of each Bank in the Revolving Credit Loans and the Letters
of Credit shall be pari passu and equal with the Pro Rata Share of each other
Bank and no Bank shall have priority over the other.
8.15 Cooperation.
Each Bank agrees that it shall cooperate in good faith and in a commercially
reasonable manner with each other Bank and take whatever reasonable actions
(at its own expense) are necessary to implement decisions made in accordance
with this Agreement and with each of the other Loan Documents relating
thereto.
8.16 Obligations Several.
The obligations of the Banks hereunder are several and not joint. Nothing
contained in this Agreement, and no action taken by the Agent or the Banks
pursuant hereto, shall be deemed to constitute a partnership, association,
joint venture or other entity between any of the Banks. No default by any
Bank hereunder shall excuse any Bank from any obligation under this Agreement,
but no Bank shall have or acquire any additional obligation of any kind by
reason of such default. The relationship among the Loan Parties and the Banks
58
with respect to the Loan Documents and any other document executed in
connection therewith is and shall be solely that of debtor and creditors,
respectively, and neither the Agent nor any Bank has any fiduciary obligation
toward any Loan Party with respect to any such documents or the transactions
contemplated thereby.
8.17 Bank Assignments/Participations.
A. Assignment/Transfer of Commitments.
Each Bank shall have the right at any time or times to assign or transfer to
an Eligible Assignee or any affiliate of such Bank, without recourse, all or a
portion of (a) that Bank's Commitment, (b) all Loans made by that Bank, (c)
that Bank's Notes, and (d) that Bank's participation in Letters of Credit and
that Bank's participation purchased pursuant to Section 7.04; provided,
however, in each such case, that the transferor and the transferee shall have
complied with the following requirements:
(i) Prior Consent of Agent. No transfer may be consummated pursuant to this
Section 8.17(A) without the prior written consent of the Agent (other than (i)
a transfer by any Bank to another Bank, (ii) a transfer by any Bank to any
affiliate of such Bank or (iii) a transfer occurring during the existence of
an Event of Default or Potential Default), which consent of the Agent shall
not be unreasonably withheld, delayed or conditioned.
(ii) Prior Consent of Borrower. No transfer may be consummated pursuant to
this Section 8.17A without the prior written consent of the Borrower (other
than (i) a transfer by any Bank to another Bank, (ii) a transfer by any Bank
to any affiliate of such Bank or (iii) a transfer occurring during the
existence of an Event of Default or Potential Default), which consent of the
Borrower shall not be unreasonably withheld, delayed or conditioned.
(iii) Minimum Amount. No transfer may be consummated pursuant to this Section
8.17(A) (other than a transfer by any Bank to an affiliate of such Bank) in an
aggregate amount less than (a) Five Million and 00/100 Dollars ($5,000,000.00)
or (b) if such Bank's Commitment is at any time less than Five Million and
00/100 Dollars ($5,000,000.00), the entire amount of such Bank's Commitment.
(iv) Agreement; Transfer Fee. Unless the transfer shall be to an affiliate of
the transferor or the transfer shall be due to merger of the transferor or for
regulatory purposes, the transferor (A) shall remit to the Agent, for its own
account, an administrative fee of Three Thousand Five Hundred and 00/100
Dollars ($3,500.00) and (B) shall cause the transferee to execute and deliver
to the Borrower, the Agent and each Bank (1) an Assignment Agreement, in the
form of Exhibit "D" attached hereto and made a part hereof (an "Assignment
Agreement") together with the consents and releases and the Administrative
Questionnaire referenced therein, and (2) such additional amendments,
assurances and other writings as the Agent may reasonably require.
(v) Notes. Upon its receipt of an Assignment Agreement executed by the
parties to such Assignment, together with each Note subject to such Assignment
Agreement, the Agent shall (a) record the information contained therein in the
Register, and (b) give prompt notice thereof to the Borrower and the other
Banks. Within five (5) Business Days after receipt of such notice, the
Borrower, at its own expense, shall execute and deliver (A) to the Agent, the
transferor and the transferee, any consent or release (of all or a portion of
the obligations of the transferor) to be delivered in connection with the
Assignment Agreement, and (B) to the transferee and, if applicable, the
59
transferor, the appropriate Notes. Upon delivery of the new Notes, the
transferor's Notes shall be promptly returned to the Borrower marked
"replaced".
(vi) Parties. Upon satisfaction of the requirements of this Section 8.17,
including the payment of the fee and the delivery of the documents set forth
in Section 8.17(A) (iv), (A) the transferee shall become and thereafter be
deemed to be a "Bank" for the purposes of this Agreement, (B) if the
transferor transfers all of its interest, the transferor shall cease to be and
thereafter shall no longer be deemed to be a "Bank" and shall have no further
rights or obligations under or in connection herewith, and (C) the signature
pages hereof and Schedule 1 hereto shall be automatically amended, without
further action, to reflect the result of any such transfer.
(vii) The Register. The Agent shall maintain a copy of each Assignment
Agreement delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentages of, and principal amount of the Loans owing to, each Bank from
time to time. The entries in the Register shall be conclusive, in the absence
of manifest error, with respect to such information, and the Borrower, the
Agent and the Banks may treat each financial institution whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(viii) Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment Agreement, the parties to the
Assignment thereunder confirm to and agree with each other and the other
parties hereto as follows:
(a) Other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no representation and warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto;
(b) The assigning Bank makes no representation or warranty and assumes no
responsibility of the financial condition of any Loan Party or any other
Person primarily or secondarily liable in respect of any of the Indebtedness
of the Borrower to the Banks, or the performance or observance by any Loan
Party or any other Person primarily or secondarily liable in respect of any of
the Indebtedness of the Borrower to the Banks or any of their obligations
under this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) Such assignee confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements referred to in
Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Assignment Agreement;
(d) Such assignee will, independently and without reliance upon the assigning
Bank, the Agent or any other Bank and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
60
(e) Such assignee represents and warrants that it is an Eligible Assignee;
(f) Such assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto;
(g) Such assignee agrees that it will perform in accordance with their terms
all of the obligations that by the terms of this Agreement are required to be
performed by it as a Bank; and
(h) Such assignee represents and warrants that it is legally authorized to
enter into such Assignment Agreement.
B. Participations.
Each Bank shall have the right at any time or times, without the consent of
any other party, to sell one or more participations or sub-participations to
one or more financial institutions or any affiliate of such Bank, in all or
any part of (a) that Bank's Commitment, (b) that Bank's Commitment Percentage,
(c) any Loan made by that Bank, (d) any Note delivered to that Bank pursuant
to this Agreement and (e) that Bank's participations, if any, purchased
pursuant to Section 7.04 or this Section 8.17(B).
(i) Rights Reserved. In the event any Bank shall sell any participation or
sub-participation, that Bank shall, as between itself and the purchaser,
retain all of its rights (including, without limitation, rights to enforce
against the Loan Parties the Loan Documents and any and all other documents in
connection therewith) and duties pursuant to the Loan Documents and any and
all other documents in connection therewith, including, without limitation,
that Bank's right to approve any waiver, consent or amendment pursuant to
Section 9.02; provided, however, that (a) any such participation shall be in a
minimum amount of Five Million and 00/100 Dollars ($5,000,000.00) and (b) the
holder of any such participation shall not be entitled to require such Bank to
take any action hereunder except action directly affecting (i) any reduction
in the principal amount or an interest rate on any Loan in which such holder
participates; (ii) any extension of the Expiry Date or the date fixed for any
payment of interest or principal payable with respect to any Loan in which
such holder participates; and (iii) any reduction in the amount of any fees
payable hereunder with respect to any Loan in which such holder participates.
The Borrower hereby acknowledges and agrees that the participant under each
participation shall for purposes of Sections 2.12(b), 2.13, 7.03 and 9.16 be
considered to be a "Bank". Except as otherwise set forth herein, no
participant or sub-participant shall have any rights or obligations hereunder,
and the Loan Parties and the Agent shall continue to deal with the Banks as if
no participation or sub-participation had occurred. The Agent shall continue
to distribute payments as if no participation or sub-participation had been
sold.
(ii) No Delegation. No participation or sub-participation shall operate as a
delegation of any duty of the seller thereof. Under no circumstances shall
any participation or sub-participation be deemed a novation in respect of all
or any part of the seller's obligations pursuant to this Agreement.
61
C. Pledge by Banks. Notwithstanding the provisions of this Section 8.17, any
Bank may at any time pledge all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes) to any of the
federal reserve banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. 341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
ARTICLE IX
MISCELLANEOUS
9.01 Business Days.
Except as otherwise provided in this Agreement, whenever any payment or action
to be made or taken under this Agreement, or under the Notes or under any of
the other Loan Documents is stated to be due on a day which is not a Business
Day, such payment or action will be made or taken on the next following
Business Day and such extension of time will be included in computing interest
or fees, if any, in connection with such payment or action.
9.02 Amendments and Waivers.
No amendment, modification, termination, or waiver of any provision of this
Agreement or any Loan Document, nor consent to any variance therefrom, shall
be effective unless the same shall be in writing and signed by the Majority
Banks and the Borrower and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose given. Notwithstanding
anything contained herein to the contrary, unanimous consent of the Banks
shall be required with respect to (a) any increase in the Commitments
hereunder, (b) the extension of the Expiry Date, the payment date of interest
or principal hereunder, or the payment of commitment or other fees or amounts
payable hereunder, (c) any reduction in the rate of interest on the Notes, or
in any amount of principal or interest due on any Note, or the payment of
commitment or other fees hereunder or any change in the manner of pro rata
application of any payments made by the Borrower to the Banks hereunder, (d)
any change in any percentage voting requirement, voting rights or the
definition of Majority Banks in this Agreement, (e) any release of any
Guarantor from its obligations under the Guaranty Agreement to which it is a
party, or (f) any amendment to this Section 9.02, 9.11 or Section 7.04 hereof.
Notice of amendments or consents ratified by the Banks hereunder shall be
immediately forwarded by the Agent to all Banks. Each Bank or other holder of
a Note shall be bound by any amendment, waiver or consent obtained as
authorized by this Section, regardless of its failure to agree thereto. In
the case of any such waiver or consent relating to any provision of this
Agreement, any Event of Default or Potential Default so waived or consented to
will be deemed to be cured and not continuing, but no such waiver or consent
will extend to any other or subsequent Event of Default or Potential Default
or impair any right consequent to any other or subsequent Event of Default or
Potential Default or impair any right consequent thereto.
62
9.03 No Implied Waiver: Cumulative Remedies.
No course of dealing and no delay or failure of the Agent or the Banks in
exercising any right, power or privilege under this Agreement, the Notes or
any other Loan Document will affect any other or future exercise of any such
right, power or privilege or exercise of any other right, power or privilege
except as and to the extent that the assertion of any such right, power or
privilege shall be barred by an applicable statute of limitations; nor shall
any single or partial exercise of any such right, power or privilege or any
abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise of such right, power or privilege or
of any other right, power or privilege. The rights and remedies of the Agent
and the Banks under this Agreement, the Notes or any other Loan Document are
cumulative and not exclusive of any rights or remedies which the Banks would
otherwise have.
9.04 Notices.
All notices, requests, demands, directions and other communications
(collectively, "Notices") under the provisions of this Agreement or the Notes
must be in writing (including telexed or telecopied communication) unless
otherwise expressly permitted under this Agreement and must be sent by first-
class or first-class express mail, private overnight or next Business Day
courier or by telecopy with confirmation in writing mailed first class, in all
cases with charges prepaid, and any such properly given Notice will be
effective when received. All Notices will be sent to the applicable party at
the addresses stated below or in accordance with the last unrevoked written
direction from such party to the other parties.
If to Borrower:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
▇▇▇▇▇▇▇▇ International Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and a copy to:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, Esquire
▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Agent:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Vice President
Citizens Bank of Pennsylvania
Two Mellon Bank Center, Room 152-0230
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
One Oxford Centre, 14th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Banks:
At such Bank's address set forth
on Schedule 1 attached hereto and
made a part hereof
63
9.05 Expenses; Taxes; Attorneys Fees.
The Borrower agrees to pay or cause to be paid and to save the Agent and the
Banks harmless against liability for the payment of all reasonable out-of-
pocket expenses, including, but not limited to reasonable fees and expenses of
counsel and paralegals for the Agent and the Banks, incurred by the Agent and
the Banks from time to time (i) arising in connection with the preparation,
execution, delivery and performance of this Agreement, the Notes and the other
Loan Documents, (ii) relating to any requested amendments, waivers or consents
to this Agreement, the Notes or any of the other Loan Documents and (iii)
arising in connection with the Agent's and the Banks' enforcement or
preservation of rights under this Agreement, the Notes or any of the other
Loan Documents including, but not limited to, such expenses as may be incurred
by the Agent and the Banks in the collection of the outstanding principal
amount of the Loans. The Borrower agrees to pay all stamp, document,
transfer, recording or filing taxes or fees and similar impositions now or in
the future determined by the Agent and the Banks to be payable in connection
with this Agreement, the Notes or any other Loan Document. The Borrower
agrees to save the Agent and the Banks harmless from and against any and all
present or future claims, liabilities or losses with respect to or resulting
from any omission to pay or delay in paying any such taxes, fees or
impositions. In the event of a determination adverse to the Borrower of any
action at Law or suit in equity in relation to this Agreement, the Notes or
the other Loan Documents, the Borrower will pay, in addition to all other sums
which the Borrower may be required to pay, a reasonable sum for attorneys and
paralegals fees incurred by the Agent and the Banks or the holder of the Notes
in connection with such action or suit. All payments due under this Section
will be added to and become part of the Loans until paid in full.
9.06 Severability.
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement is held invalid or unenforceable in whole or in
part in any jurisdiction, the provision will, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in
any manner affecting the validity or enforceability of the provision in any
other jurisdiction or the remaining provisions of this Agreement in any
jurisdiction.
9.07 Governing Law: Consent to Jurisdiction.
This Agreement will be deemed to be a contract under the Laws of the
Commonwealth of Pennsylvania and for all purposes will be governed by and
construed and enforced in accordance with the substantive Laws, and not the
laws of conflicts, of said Commonwealth. The Loan Parties consent to the
exclusive jurisdiction and venue of the federal and state courts located in
Allegheny County, Pennsylvania, in any action on, relating to or mentioning
this Agreement, the Notes, the other Loan Documents, or any one or more of
them.
9.08 Prior Understandings.
This Agreement, the Notes and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, among the parties
relating to the transactions provided for in this Agreement, the Notes and the
other Loan Documents.
64
9.09 Duration; Survival.
All representations and warranties of the Loan Parties contained in this
Agreement or made in connection with this Agreement or any of the other Loan
Documents shall survive the making of and will not be waived by the execution
and delivery of this Agreement, the Notes or the other Loan Documents, by any
investigation by the Agent or any Bank, or the making of any Loan.
Notwithstanding termination of this Agreement or an Event of Default, all
covenants and agreements of the Loan Parties will continue in full force and
effect from and after the date of this Agreement so long as the Borrower may
borrow under this Agreement and until payment in full of the Notes, interest
thereon, and all fees and other obligations of the Borrower under this
Agreement or the Notes. Without limitation, it is understood that all
obligations of the Loan Parties to make payments to or indemnify the Agent and
the Banks will survive the payment in full of the Notes and of all other
obligations of the Loan Parties under this Agreement, the Notes and the other
Loan Documents.
9.10 Counterparts.
This Agreement may be executed in any number of counterparts and by the
different parties to this Agreement on separate counterparts each of which,
when so executed, will be deemed an original, but all such counterparts will
constitute but one and the same instrument.
9.11 Successors and Assigns.
This Agreement will be binding upon and inure to the benefit of the Agent, the
Banks, the Borrower and their successors and assigns, except that the Borrower
may not assign or transfer any of its rights under this Agreement without the
prior written consent of the Banks.
9.12 No Third Party Beneficiaries.
The rights and benefits of this Agreement and the other Loan Documents are not
intended to, and shall not, inure to the benefit of any third party.
9.13 Exhibits.
All exhibits and schedules attached to this Agreement are incorporated and
made a part of this Agreement.
9.14 Headings.
The section headings contained in this Agreement are for convenience only and
do not limit or define or affect the construction or interpretation of this
Agreement in any respect.
9.15 Limitation of Liability.
To the fullest extent permitted by Law, no claim may be made by the Borrower
against the Agent or the Banks or any affiliate, director, officer, employee,
attorney or agent thereof for any special, incidental, indirect, consequential
or punitive damages in respect of any claim arising from or related to this
Agreement or any other Loan Document or any statement, course of conduct, act,
omission or event occurring in connection herewith or therewith (whether for
breach of contract, tort or any other theory of liability). The Borrower
hereby waives, releases and agrees not to ▇▇▇ upon any claim for any such
damages, whether such claim presently exists or arises hereafter and whether
or not such claim is known or suspected to exist in its favor. This Section
9.15 shall not limit any rights of the Borrower arising solely out of gross
negligence or willful misconduct.
65
9.16 Indemnities.
In addition to the payment of expenses pursuant to Section 9.05 hereof, the
Borrower agrees to indemnify, pay and hold the Agent and each Bank and their
officers, directors, employees, agents, consultants, auditors, affiliates and
attorneys (collectively, called the "Indemnitees"), harmless from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including the reasonable fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto) that may be imposed on, incurred by or
asserted against that Indemnitee, in any matter arising from (i) the
occurrence of an Event of Default hereunder or under the other Loan Documents,
(ii) the use or intended use of the proceeds of any of the Loans, (iii) the
exercise of any right or remedy hereunder or under any of the other Loan
Documents or (iv) any error, failure or delay in the performance of any of the
Banks' obligations under this Agreement caused by natural disaster, fire, war,
strike, civil unrest, error in inoperability of communication equipment or
lines or any other circumstances beyond the control of the Banks (the
"Indemnified Liabilities"); provided, however, that the Borrower shall have no
obligation to an Indemnitee hereunder with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of that Indemnitee.
[INTENTIONALLY LEFT BLANK]
66
9.17 WAIVER OF TRIAL BY JURY. THE BORROWER, THE AGENT AND THE BANKS
EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL BENEFIT AND ADVANTAGE OF ANY
RIGHT TO A TRIAL BY JURY, AND NO PARTY HERETO WILL AT ANY TIME INSIST UPON, OR
PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE THE BENEFIT OR ADVANTAGE OF A
TRIAL BY JURY IN ANY ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS.
INITIALS:
DMK
------------------
Borrower
CCH
------------------
Citizens, as Agent
and for itself
DS
------------------
PNC, as Documentation Agent
and for itself
JLH
------------------
National City
CSH
------------------
Fifth Third
[INTENTIONALLY LEFT BLANK]
67
IN WITNESS WHEREOF, and intending to be legally bound, the parties, by their
duly authorized officers, have executed and delivered this Agreement on the
date set forth at the beginning of this Agreement.
Attest: ▇▇▇▇▇▇▇▇ International Corporation
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------- -------------------------------
Title: Secretary Title: President
Citizens Bank of Pennsylvania,
as Agent and for itself as a Bank
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
-------------------------------
Title: Vice President
PNC Bank, National Association,
as Documentation Agent and
for itself as a Bank
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
National City Bank of Pennsylvania
By: ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
-------------------------------
Title: Vice President
Fifth Third Bank
By: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Title: Vice President